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5-1.000
POLICY


5-1.100 General Policy and Responsibilities
5-1.200 Litigation Involving the Environmental Protection Agency
5-1.300 Supervision and Handling of Environment and Natural Resources Division Cases—Generally
5-1.302 Pleadings To Be Signed by the Assistant Attorney General
5-1.310 Authority of United States Attorneys to Initiate Actions Without Prior Authorization, i.e., Direct Referral Cases
5-1.320 Actions Not Subject to Direct Referral to United States Attorneys
5-1.321 Prior Authorization Needed to Initiate Action
5-1.322 Assignment of Actions Generally
5-1.323 Cases Assigned to United States Attorneys
5-1.324 Cases Assigned as a Joint Responsibility
5-1.325 Cases for Which the Division Is Assigned Responsibility
5-1.326 Review and Change of Case Assignments

5-1.100

General Policy and Responsibilities

The Environment and Natural Resources Division, which was created in 1909, represents the United States, its agencies and officials in matters relating to environmental quality, public lands and natural resources, Indian lands and native claims, and wildlife and fishery resources. The Division's responsibilities are varied and include both enforcement and defensive work, in both criminal and civil cases. More specifically, responsibilities of the Environment and Natural Resources Division are set forth in 28 C.F.R. § 0.65.

[cited in USAM 5-12.500; USAM 5-7.120; USAM 5-10.500]

5-1.200

Litigation Involving the Environmental Protection Agency

With respect to any matter assigned to the Environment and Natural Resources Division in which the Environmental Protection Agency is a party, the Assistant Attorney General in charge of the Environment and Natural Resources Division, and such staff as he/she may specifically designate in writing, are authorized to exercise the functions and responsibilities undertaken by the Attorney General in the Memorandum of Understanding between the Department of Justice and the Environmental Protection Agency (42 Fed.Reg. 48942), except that Subpart Y of 28 CFR Part 0 shall continue to govern as authority to compromise and close civil claims in such matters.

5-1.300

Supervision and Handling of Environment and Natural Resources Division Cases—Generally

All cases within the area of responsibility of the Environment and Natural Resources Division are subject to the supervision and control of the Assistant Attorney General in charge of the Environment and Natural Resources Division. As is hereinafter more fully set forth, the responsibilities for direct handling of cases are divided into four general classifications: (1) cases for which authority has been delegated to the United States Attorneys which may be directly referred to him/her by an authorized field officer or a federal department or agency, see USAM 5-1.310; (2) cases which are delegated to the United States Attorneys by the Assistant Attorney General of the Division for which the United States Attorneys are assigned primary responsibility, see USAM 5-1.323; (3) cases which the Assistant Attorney General of the Division determines shall be the joint responsibility of the Division and the United States Attorney, see USAM 5-1.324; and (4) cases for which the Division retains primary responsibility, see USAM 5-1.325.

[cited in USAM 5-5.210; USAM 5-5.230]

5-1.302

Pleadings To Be Signed by the Assistant Attorney General

In all civil cases where the United States is a plaintiff, other than direct referral cases, see USAM 5-1.310 and specific cases or classes of cases the Assistant Attorney General exempts from this requirement, arising from matters in the litigating sections, all complaints, or agreements for entry of judgment or dismissal shall be signed, prior to filing, by the Assistant Attorney General, unless otherwise expressly delegated.

[cited in USAM 5-6.321; USAM 5-8.600; USAM 5-9.321; USAM 5-10.321]

5-1.310

Authority of United States Attorneys to Initiate Actions Without Prior Authorization, i.e., Direct Referral Cases

Actions which may be initiated by the United States Attorneys without prior authorization from the Environment and Natural Resources Division are listed in Environment and Natural Resources Division Directive No. 16-99. The pertinent portion of the amended Directive provides generally as follows:

AUTHORITY TO INITIATE CASES

  1. Delegation to United States Attorneys

    1. Land Cases.

      (1) United States Attorneys are hereby authorized with respect to Environment and Natural Resources Division cases to act in matters concerning real property of the United States, including tribal and restricted individual Indian land, not involving new or unusual questions or questions of water rights, on behalf of any department or agency in response to a request in writing from a person authorized to make the request on behalf of the field office of that department or agency ("authorized field officer"), without prior authorization from the Environment and Natural Resources Division, in the following described cases:
      (a) Actions to recover possession of or quiet title to property from tenants, squatters, trespassers, or others, and actions to enjoin trespasses;

      (b) Actions to recover damages resulting from trespasses when the amount of the claim for actual damage based upon an innocent trespass does not exceed $1,000,000, and actions to recover amounts exceeding $1,000,000:

      (i) if the actual damages are $1,000,000 or less and applicable state law permits the recovery of multiple damages, e.g., double or treble, for either a willful or an innocent trespass; or

      (ii) if the actual damages are $1,000,000 or less, but the action is for conversion to obtain recovery of the enhanced value of property severed and removed in the trespass;

      (c) Actions to collect delinquent rentals or damages for use and occupancy of not more than $1,000,000;

      (d) Actions to collect costs of forest fire suppression and other damages resulting from such fires;

      (e) Actions to collect delinquent operation and maintenance charges accruing on Indian irrigation projects and federal reclamation projects of not more than $1,000,000;

      (f) Actions to collect loans of money or livestock made by the United States to individual Indians without limitation on amount, including loans made by Indian tribal organizations to individual Indians if the loan agreements, notes and securities have been assigned by the tribal organizations to the United States; and

      (g) Actions in which the United States is named as a party pursuant to 28 U.S.C. §§ 2410(a)(3) and (4).

      (2) Before initiating proceedings pursuant to this subsection, the Unite d States Attorney shall insure that a copy of the authorized field officer's written request has been forwarded to the Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, Washington, D.C. 20530.

    2. Other Civil Environmental Cases.

      (1) United States Attorneys are authorized to act, without prior authorization from the Environment and Natural Resources Division, on behalf of the Secretary of the Army, acting through the Corps of Engineers, in response to a request in writing from an authorized field officer of the Corps of Engineers in the following civil environmental cases:
      (a) Civil actions involving the filling or the deposit of dredged or fill material into, or the alteration of the channels of, the waters of the United States, in violation of section 10 of the River and Harbor Act of 1899 (33 U.S.C. § 403), or of section 404 of the Federal Water Pollution Control Act Amendments of 1972 ("Clean Water Act") (33 U.S.C. § 1344), or of both statutes;

      (b) Civil actions involving the discharge of refuse into the navigable waters of the United States, and, in certain cases, their tributaries, in violation of section 13 of the River and Harbor Act of 1899 (33 U.S.C. § 407), except for in rem actions against vessels, which actions shall continue to be under the jurisdiction of the Civil Division.

      (2) The authority set forth in subparagraphs B.(1)(a) and B.(1)(b) of this paragraph is, however, revocable on a case by case basis where, in the opinion of the Assistant Attorney General, important or novel issues of law or policy are involved. Generally speaking, direct referral cases are of a routine nature and involve statutory provisions whose interpretation is well- settled. Prior to initiating proceedings pursuant to subparagraphs B.(1)(a) or B.(1)(b) of this paragraph, the United States Attorney shall insur e that a copy of the authorized field officer's written request and the litigation report has been forwarded to the Chief, Environmental Defense Section, Environment and Natural Resources Division, Department of Justice, Washington, D.C. 20530. United States Attorneys are encourage to consult with the Environment and Natural Resources Division on these cases.

      (3) United States Attorneys are also authorized to handle the following matters without prior authorization from the Environment and Natural Resources Division:
      (a) Cases brought on behalf of the United States Coast Guard in response to a written request from an authorized field officer, seeking federal clean up costs or civil penalties under section 311 of the Clean Water Act (33 U.S.C. § 1321); and Sections 1002 and 1017 of the Oil Pollution Act of 1990, 33 U.S.C. §§ 2702 and 2717, for the collection of federal clean up costs and/or the imposition of ci vil penalties;
      (b) Miscellaneous proceedings, such as warrant requests, in assistance to agencies seeking investigative entry under section 308 of the Clean Water Act (33 U.S.C. § 1318); sections 114 or 206 of the Clean Air Act (42 U.S.C. §§ 7414, 7525); sections 3007 or 3013 of the Resource Conservation and Recovery Act (42 U.S.C. §§ 6927, 6934); section 11 of the Toxic Substances Control Act (15 U.S.C. § 2610); or section 9 of the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136g).

      (c) Cases under any statute listed in USAM 5-12.100 for collection of civil penalties previously assessed by the referring agency in an administrative proceeding where the amount of the penalty does not exceed $1 million.

      (4) The authority set forth in subparagraphs B.(3)(a), B.(3)(b), and B.(3)(c) of this paragraph is, however, revocable on a case-by-case basis where, in the opinion of the Assistant Attorney General, important or novel issues of law or policy are involved. Before initiating proceedings pursuant to subparagraph B.(3)(a), B.(3)(b), or B.(3)(c), the United States Attorney shall insure that a copy of the authorized field officer's written request has been forwarded to the Chief, Environmental Enforcement Section, Environment and Natural Resources Division, Department of Justice, Washington, D.C. 20530.

    3. Wildlife and Marine Resources Cases. United States Attorneys are authorized to act, without prior authorization from the Environment and Natural Resources Division, on behalf of any other department or agency in response to a direct request in writing from an authorized field officer of the department or agency concerned, in the following wildlife cases:
      (a) Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.;

      (b) Lacey Act Amendments of 1981, 16 U.S.C. § 3371 et seq., 18 U.S.C. § 42;

      (c) Airborne Hunting Act, 16 U.S.C. § 742j-1;

      (d) Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.;

      (e) Migratory Bird Conservation Act, 16 U.S.C. §§ 715 to 715d, 715e, 715f to 715k, 715l to 715r;

      (f) Bald and Golden Eagle Protection Act, 16 U.S.C. §§  668 to 668d;

      (g) Dingell-Johnson Fish Restoration Act, 16 U.S.C. §§ 777 to 777i, 777k;

      (h) National Wildlife Refuge System Administration Act, 16 U.S.C. §§ 668dd, 668ee;

      (i) Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1431 et seq.;

      (j) Magnuson Fishery Conservation and Management Act, 16 U.S.C. §  1801 et seq.;

      (k) Whaling Convention Act, 16 U.S.C. § 981 et seq.;

      (l) Atlantic Tunas Convention Act, 16 U.S.C. §  971;

      (m) Tuna Convention Act, 16 U.S.C. § 951 et seq.;

      (n) Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq.; (o) Sockeye Salmon or Pink Salmon Fishing Act, 16 U.S.C. §  776 et seq. [repealed];

      (p) Fur Seal Act of 1966, 16 U.S.C. § 1151 et seq.;

      (q) Protection of Sea Otters on the High Seas Act, 16 U.S.C. § 1171 et seq.;

      (r) Wild Free Roaming Horses and Burros Act, 16 U.S.C. §§ 1331 to 1340;

      (s) Fish and Wildlife Coordination Act, 16 U.S.C. §§  661 to 667e;

      (t) Animal Damage Control Act, 7 U.S.C. § 426 et seq.;

      (u) Sponge Act, 16 U.S.C. § 781 et seq.;

      (v) Northern Pacific Halibut Act, 16 U.S.C. § 773 et seq.;

      (w) North Pacific Fisheries Act, 16 U.S.C. § 1021 et seq. [repealed];

      (x) Humane Methods of Livestock Slaughter Act, 7 U.S.C. § 1902 et seq. (including violations cross-referenced under 21 U.S.C. § 601 et seq.)

      (y) Animal Welfare Act, 7 U.S.C. § 2131 et seq.

      (z) Animal Fighting Venture Prohibition, 7 U.S.C. § 2156

      (aa) Horse Protection Act, 15 U.S.C. § 1821 et seq.

      (bb) 28-Hour Law, 49 U.S.C. § 80502

      Upon receipt of referrals of any law enforcement action under the above statutes, notice shall be given to the Wildlife and Marine Resources Section before filing or declining to file an action, as set forth in USAM 5-10.312.

      United States Attorneys are not authorized to commence actions against foreign vessels or foreign fishermen under the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq., without prior telephonic approval from the Section. The views of the United States Attorney for a district to which a foreign vessel may be brought will be ascertained in advance of seizure by the Coast Guard. The United States Attorney should then contact the Section to discuss the complaint to be filed, release bond and inventory arrangements.

    4. Delegated Cases.

      (1) Pursuant to paragraph 10 of the Memorandum of Understanding between the Department of Justice and the Environmental Protection Agency, 42 Fed. Reg. 48942 (1977), with respect to the handling of civil litigation on behalf of the Environmental Protection Agency, all requests of the Environmental Protection Agency for litigation must be submitted by the Agency to the Assistant Attorney General, except that matters requiring an immediate temporary restraining order may be submitted by the Regional Administrators of the Environmental Protection Agency to a United States Attorney and the Assistant Attorney General. Once a case has been approved for filing, United States Attorneys are authorized, without prior approval of the Assistant Attorney General, Environment and Natural Resources Division, and subject to the limitations imposed by paragraph E below, to compromise any of the following civil cases if such a case has been delegated to the United States Attorney by the Assistant Attorney General and has been principally prosecuted by the Office of the United States Attorney:
      (a) cases under the Safe Drinking Water Act, 42 U.S.C. §  300(f) et seq., and § 300h-2, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., and Section 104 (e) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §  9604(e), where the amount of the civil penalty to be paid to the United States by a defendant, together with the cost of any Supplemental Environmental Projects (SEPs) does not exceed $1 million and, in addition, either (i) the penalty (not including any SEPs) is equal to or greater tha n the economic benefit of non-compliance, or (ii) the settlement results from an inability to pay analysis as confirmed by a qualified financial analyst;

      (b) cases under Sections 112 and 113 of the Clean Air Act, 42 U.S.C. §§ 7412 and 7413, for violations of the national emission standards for asbestos hazardous air pollutants;

      (c) cases under Section 17(a)(1) of the Toxic Substances Control Act, 15 U.S.C. § 2616(a)(1) and Section 1018(b)(2) of The Residential Lead-Based Paint Hazard Reduction Act, 42 U.S.C. § 1018(b)(2), for violations of the duty to disclose the presence of lead-based paint and information concerning its hazards to prospective buyers and renters of residential property;

      (d) cases under Section 311 of the Clean Water Act, 33 U.S.C. §  1321, and Sections 1002 and 1017 of the Oil Pollution Act of 1990, 33 U.S.C. § 2702 and 2717, for recovery of costs expended by the United States to remove oil or hazardous substances discharged into or upon the navigable waters or adjoining shorelines, or into or upon the continuous zones or exclusive economic zones, where such costs do not exceed $5 million, exclusive of interest, and the difference between the gross amount of the United States' claim and the proposed settlement does not exceed $1 million.

      (e) cases under any statute listed in USAM 5-12.100 to enforce requests for access to information, entry and/or inspection and samples, or for civil penalties for noncompliance with such requests.

      (2) United States attorneys are not authorized to compromise claims listed above if the claim is part of lawsuit in which claims under other statutes are also included (i.e. "multi-media" cases).

    5. Limitations On Delegations

      (1) The authority to compromise cases, file suits, counterclaims, and cross claims, close cases, or take any other action necessary to protect the interests of the United States, delegated by paragraph B.(3), C and D. above, may not be exercised, and the matter shall be submitted for resolution to the Assistant Attorney General, Environment and Natural Resources Division, when:
      (a) For any reason, the proposed action, as a practical matter, will control or adversely influence the disposition of other claims totaling more than the respective amounts designated in the above paragraphs;

      (b) Because of a novel question of law or a question of policy presented, or for any other reason, the proposed action should, in the opinion of the officer or employee concerned, receive the personal attention of the Assistant Attorney General, Environment and Natural Resources Division;

      (c) The agency or agencies involved are opposed to the proposed action, settlement or compromise; or

      (d) The Assistant Attorney General, Environment and Natural Resources Division, so directs.

      (2) In addition, when constitutional questions or other significant issues arise in the course of such litigation, or when an appeal is taken by any party, the Environment and Natural Resources Division must be consulted.

    6. Authority To Approve Federal Register Notices

      (1) Pursuant to 28 CFR § 50.7, each proposed settlement of an action to enjoin discharges of pollutants into the environment must be "lodged" with a court at least 30 days prior to "entry" in order to allow for public comment. For settlements in cases handled by United States Attorneys under paragraphs B.(3), C. and D. above, the United States Attorneys are authorized to:

      (a) To approve all Federal Register Notices under 28 C.F.R. § 50.7 and under any statute enforced by the Division, and to transmit those notices to the Assistant Attorney General, Office of Legal Counsel, for publication;

      (b) To determine on a case-by-case basis whether a modification to a previously entered consent decree which had previously been noticed for public comment, requires additional public comment; and

      (c)To approve motions to enter consent decrees after public comment.

      (2) However, any motion to enter a consent decree should be referred to the Assistant Attorney General, Environment and Natural Resources Division, whenever there has been a significant number of comments or where any comment raises a substantial issue that should receive the attention of the Assistant Attorney General, or where the United States Attorney is of the opinion that because of a question of law or policy presented, or for any other reason, the motion should receive the attention of the Assistant Attorney General.

    7. Litigation Involving The Environmental Protection Agency

      All litigation involving the Environmental Protection Agency must be conducted in accordance with the 1977 Memorandum of Understanding between the Department of Justice and the Environmental Protection Agency (including the time frames set forth in paragraphs 8, 9 and 10 of that document), and with the guidance and policies established by the Environmental Protection Agency, the Environment and Natural Resources Division and the Environmental Enforcement Section regarding litigation of civil environmental cases. The Environmental Enforcement Section will provide the United States Attorneys with copies of all pertinent guidance and policies. In addition, United States Attorneys will promptly report on the status of cases under these delegations whenever information is needed for required reports to client agencies, Congress, etc., or for docket reviews with Department and Division management or with client agencies.

    8. Memorandum By United States Attorney Explaining Action

      For purposes of maintaining accurate information on civil environmental case filings, judgments and settlements, whenever a United States Attorney files a suit, settles a case, accepts a compromise or closes a claim pursuant to the authority delegated above, a memorandum fully explaining the basis for the action taken shall be executed and placed in the file and a copy sent to the Section Chief, Environmental Enforcement Section.

    [cited in USAM 5-1.300; USAM 5-1.302; USAM 5-1.322; USAM 5-5.230; USAM 5-7.310; USAM 5-7.321; USAM 5-10.310; USAM 5-10.312; USAM 5-10.600; USAM 5-10.630; USAM 5-12.100; USAM 5-12.111; USAM 5-12.530]

    [updated October 2014]

5-1.320

Actions Not Subject to Direct Referral to United States Attorneys

Sections 5-1.321 through 5-1.326 discuss the actions not subject to direct referral to United States Attorneys.

[cited in USAM 5-12.111; USAM 5-12.320]

5-1.321

Prior Authorization Needed to Initiate Action

Actions which may not be initiated by the United States Attorneys without prior authorization from the Division are listed in USAM 5-2.000.

5-1.322

Assignment of Actions Generally

All cases which are not subject to direct referral to the United States Attorneys as set forth in USAM 5-1.310 are initially referred to the Assistant Attorney General for review. Such review is assigned to the appropriate Section of the Division which then initially determines whether the case should more appropriately be: (1) assigned to the United States Attorney, see USAM 5-1.323, (2) designated as a case to be handled as the joint responsibility of the United States Attorney and the Division, see USAM 5-1.324, or (3) retained by the Division for its direct handling. See USAM 5-1.325. The costs of litigation and the proximity of the United States Attorney to the court result in a large percentage of cases being assigned to the United States Attorneys. However, the nature of the issue of law involved, the relative national or financial importance of the case, the precedential possibilities of the litigation, and the need for the Division to retain a cadre of staff attorneys trained in the trial of cases, are considerations in making case assignments.

[cited in USAM 5-6.321; USAM 5-9.320; USAM 5-10.320]

5-1.323

Cases Assigned to United States Attorneys

Assignment of case responsibility to the United States Attorney is always with the understanding that the Assistant Attorney General of the Division has supervisory responsibility on behalf of the Attorney General over all litigation under the jurisdiction of the Division. Where possible, the Division will promulgate categories of cases which will be assigned to the United States Attorneys; these assignments may distinguish between United States Attorneys on the basis of their experience and expertise with respect to such cases. If an assignment of any such case is made pursuant to USAM 5-1.324 or 5-1.325, the notice of assignment to the United States Attorney will note the exception.

The United States Attorney shall be primarily responsible for all cases assigned to him/her. If he/she feels that he/she cannot accept responsibility by reason of a conflict of interest, the lack of personnel or expertise in his/her office, or other good reasons, he/she should immediately consult with the Chief of the appropriate Section to determine if some other assignment of responsibility can be made.

Regular communication should be maintained with the appropriate Section of the Division regarding the conduct of litigation assigned to the United States Attorneys, especially if any problems arise in connection with a case. The Division is organized so as to maintain considerable expertise in the particular subject matter areas under the jurisdiction of the Division and is, therefore, in a position to provide valuable assistance to the United States Attorney, including assistance in preparing pleadings and briefs as well as providing general advice on the substantive law and the handling of litigation. A copy of the final order entered in any case must be transmitted promptly to the appropriate S ection of the Division.

[cited in USAM 5-1.300; USAM 5-1.322; USAM 5-1.324; USAM 5-6.302]

5-1.324

Cases Assigned as a Joint Responsibility

If the appropriate Section of the Division feels that a given case should be handled as a joint responsibility of the United States Attorney and the Division, the Chief of the Section shall make the assignment initially with a written description of the expected division of work and responsibility for the case. In the event the United States Attorney involved is not satisfied with the assignment, he/she shall consult with the appropriate Section Chief to resolve the assignment and/or division of responsibility. Any remaining differences will be resolved by the Assistant Attorney General of the Division. At least three months before trial, a firm understanding will be reached between the Division and the United States Attorney on trial responsibility. Either the Division or the United States Attorney may request a change in the assignment at any time. The Division will periodically review all joint responsibility assignments with the objective that where Division assistance is no longer required the case may be assigned to the United States Attorney under USAM 5-1.323.

[cited in USAM 5-1.300; USAM 5-1.322; USAM 5-1.323; USAM 5-15.322]

5-1.325

Cases for Which the Division Is Assigned Responsibility

If the appropriate Section of the Division feels that a given case should be handled by staff attorneys in the Division, the Chief of the Section will notify the United States Attorney, and the Chief of the Section and the United States Attorney will then agree upon exactly what, if any, support services the United States Attorney will provide to assist the staff attorneys in handling the litigation. Again, any differences over such case assignments and the provision of support services will be resolved by the Assistant Attorney General in charge of the Division.

[cited in USAM 5-1.300; USAM 5-1.322; USAM 5-1.323; USAM 5-6.302; USAM 5-6.321]

5-1.326

Review and Change of Case Assignments

The assignment of case responsibility to the United States Attorney may be reviewed at any subsequent time at the request of the United States Attorney, the client agency, or the appropriate Section, and may be changed; a change of assignment will only be made, however, after consultation with the United States Attorney. As with all differences between a Section of the Division and the United States Attorney, any differences concerning assignment or handling of cases will be resolved by the Assistant Attorney General of the Division.

[cited in USAM 5-7.320; USAM 5-9.320]