ENRD FY 2002 Summary Of Litigation Accomplishments

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ENRD Home | Current Topics | ENRD FY 2002 Summary of Litigation Accomplishments
UNITED STATES DEPARTMENT OF JUSTICE
ENVIRONMENT AND NATURAL RESOURCES DIVISION
FISCAL YEAR 2002
SUMMARY OF LITIGATION ACCOMPLISHMENTS


CONTENTS

FOREWORD
CRIMINAL ENFORCEMENT OF THE ENVIRONMENTAL AND WILDLIFE LAWS
PROTECTING OUR NATION'S AIR AND WATER
ENSURING CLEANUP OF HAZARDOUS WASTE
DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS
PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA'S WILDLIFE AND NATURAL RESOURCES
PROTECTING INDIAN RIGHTS AND RESOLVING INDIAN ISSUES
SUPPORTING THE DIVISION'S LITIGATORS

FOREWORD

It is my pleasure to present the Environment and Natural Resources Division's Accomplishments Report for Fiscal Year 2002, which was a very successful year for the Division. As detailed in this report, we achieved significant victories in each of the many areas for which we have litigating responsibility. These areas include civil and criminal enforcement of this country's environmental laws, defense of important programs including the military's mission to ensure national security, stewardship of our natural resources and public lands, and carrying out trust responsibilities to Native Americans.

Since taking office in January 2002, one of my top priorities has been tough enforcement of the environmental laws. Firm and fair enforcement is an important component of environmental protection. It helps ensure that our citizens can breathe clean air, drink pure water, and enjoy our Nation's natural resources, and that law-abiding businesses have a level economic playing field on which to compete. We have had several major enforcement successes in the last year. These successes include criminal convictions for fraudulent testing of underground storage tanks and for smuggling of a variety of substances, ranging from ozone-destroying chlorofluorocarbons (CFCs) to caviar from imperiled sturgeon. In our civil enforcement cases, we have obtained injunctive relief that will reduce air pollution by thousands of tons annually and will help promote cleaner water from Connecticut to California. We have also ensured the cleanup of hazardous waste sites across the United States. These successes, and the Division's enforcement work more generally, have resulted in significant gains for public health and the environment and have protected the nation's infrastructure.

One of the cornerstones of our approach to ensuring broad-based environmental compliance is working together with the state and local law enforcers who are on the front lines of environmental enforcement. We have brought joint enforcement actions with virtually every state in the United States, and I am pleased to report that the Division, together with the National Association of Attorneys General, crowned this history of partnership by hosting the first-ever joint federal-state environmental enforcement conference in April 2002. In keeping with this approach, we have also forged relationships with our counterparts in Canada, Mexico, and other nations to better respond to our shared environmental concerns. All of these partnerships have helped us to meet the twin challenges of increased referrals and more complex cases.

Although the public is generally familiar with the Division's role as enforcer of the environmental laws, it comes as a surprise to many that the majority of our cases are defensive and non-discretionary. In this capacity, we have defended almost every federal agency in cases arising from well over 70 different environmental and natural resource statutes, including the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the National Environmental Policy Act, and the National Forest Management Act. Through these efforts, the Division saved the American taxpayer hundreds of millions of dollars - many times the Division's annual budget. The Department of Defense is one of our biggest clients (behind only EPA and the Department of the Interior) in terms of attorney hours expended, and we have played a significant role in ensuring that the military has adequate opportunity to carry out training exercises and otherwise provide for the national defense. Our eminent domain actions are also non-discretionary, and we focused substantial effort in the last fiscal year to obtaining office space for federal workers displaced by the tragedy of September 11, 2001.

The Division has a docket of approximately 10,175 pending matters, with cases in every judicial district in the nation, with the districts in the western United States accounting for two-thirds of those cases. This disproportionate number can be traced in part to the fact that most public and Indian lands are located in the West. Cases concerning these lands and their management by our environmental and resource management agencies rank among some of the most challenging in our docket, and as a Westerner, I applaud the work of those who put in long hours to ensure that these cases are resolved in a manner that benefits the public as a whole. Without our hard-working attorneys and staff, we would not have had the successes described in this report.

From its beginnings with only a handful of employees, the Division is now the nation's largest environmental law firm. Our successful track record in protecting the environment, Indian rights, and the nation's natural resources, wildlife, and public lands, along with acquiring land as required, is due to the hard work and efforts of the Division's attorneys and staff. In partnership with our client agencies, the United States Attorney's Offices, and state and local officials around the country, we produce top quality work in our continuing efforts to protect the environment and the people of the United States. I am proud to serve with this outstanding staff.

Thomas L. Sansonetti
Assistant Attorney General
Environment and Natural Resources Division
January 2003

CRIMINAL ENFORCEMENT OF THE ENVIRONMENTAL AND WILDLIFE LAWS

Vessel Pollution Enforcement Effort. The Vessel Pollution Enforcement Initiative is an ongoing, concentrated effort to prevent pollution from ships into the oceans, the coastal waters and the inland waterways. Since 1990, over 70 environmental prosecutions have involved pollution from ships, and in the past year, the work of the Vessel Pollution Initiative has contributed to a number of important prosecutions. One such case was United States v. Boyang Maritime in which the company pled guilty to participating in a long-term conspiracy designed to hide routine illegal discharges of oil sludge and contaminated bilge water since at least 1995. The company admitted maintaining false records, obstructing justice, and tampering with witnesses. Boyang Maritime will pay a $5 million fine, institute and pay for an environmental compliance plan, and serve five years probation. Another such prosecution was United States v. Norwegian Cruise Line Limited (NCL), in which the world's fourth-largest cruise line pled guilty to a felony violation of the Act to Prevent Pollution from Ships and was sentenced to pay a $1 million fine.

Laboratory Fraud Initiative. Laboratories are used to analyze soil, water and other media to determine their chemical composition, to assess whether such chemicals pose human health risks, and to determine whether such media are contaminated and in need of remediation. In light of this role, maintenance of the integrity of laboratory sample tests, results, and reports is critical. As a result, the Lab Fraud Task Force was established to survey the problem of fraudulent laboratory testing and to determine how best to tackle it. During the last year, Division attorneys prosecuted several nationally significant cases associated with the task force. These include United States v. Kaminski, in which three executives, two corporations, and six managers pled guilty to, and were sentenced to prison for various charges in connection with fraudulent testing of petroleum products, including reformulated gasoline, and United States v. Intertek Testing Services, in which the company was sentenced to pay a $9 million fine and serve three and a half years probation, also in connection with a fraudulent testing scheme.

Underground Storage Tank Initiative. EPA estimates that over one-third of the approximately one million underground storage tanks (USTs) in the U.S. violate federal regulations. Such tanks hold oil, gasoline, and hazardous substances and wastes, and leaks from them threaten nearby groundwater, the primary source of drinking water for most people. We have prosecuted several cases of UST testing fraud, including United States v. Tanknology in which Tanknology, the largest UST testing company in the United States, was sentenced to pay a $1 million fine and restitution of $1.29 million to the United States for false UST testing. Another such prosecution was United States v. James "Eddie" Adams, in which Adams and his company Carolina Upgrading pled guilty in connection with a scheme to defraud more than 400 UST owners in the South by conducting false tests. Adams was sentenced to serve 27 months in prison followed by three years supervised release, and Carolina Upgrading was placed on three years probation.

Refinery-related Prosecutions. In United States v. Ashland Inc., the company pled guilty to negligent endangerment under the Clean Air Act and other criminal acts in connection with draining hydrocarbons into a sewer which burst into a fireball that injured several firefightersAshland will pay a criminal fine of $3.5 million, sponsor a workshop at a Natural Petroleum conference dealing with the Clean Air Act's New Source Performance Standards for petroleum wastewater systems, publish ads in two major Twin Cities newspapers concerning the criminal case, pay $50,000 to three local fire departments that responded to the fire, and add another $50,000 to its Emergency Response Team budget. Another such prosecution was United States v. Michael Peters and Jeffrey L. Jackson, in which two managers of an oil refinery were convicted of conspiracy to violate the Clean Air Act, three substantive Clean Air Act violations, and a false statement charge. Each defendant was sentenced to serve 36 months in prison and pay a $50,000 fine.

Prosecuting Pollution of Our Rivers and Air. We are committed to prosecuting those who despoil our rivers and air. In United States v. Guide Corporation, the company pled guilty to seven misdemeanor Clean Water Act violations involving pollution of the White River in Indiana, which was the primary source of drinking water for the region and which killed five million fish. Guide Corp. was ordered to pay a $1,956,000 criminal fine, forfeit $1,956,000 in assets gained as a result of the illegal discharge, pay $275,000 in restitution serve five years probation, and commence a comprehensive environmental compliance training program for all employees. In a civil consent decree, the company agreed to pay an additional $10,025,000 penalty.

In United States v. Koppers Industries, Inc., the company pled guilty to two felony violations of the Clean Water Act, and one felony violation of the Clean Air Act. These charges resulted from hazardous air and water pollution at the company's coke production and coal by-products facility in Dolomite, Alabama. Koppers agreed to pay a $2.1 million fine and $900,000 in restitution to the Black Warrior-Cahaba Rivers Land Trust, to be placed on three years' probation, and to implement a company-wideenvironmental compliance program. A Koppers employee, J. Daniel Bell, pled guilty to a Clean Air Act felony for falsifying discharge monitoring reports and was sentenced to serve three years probation, six months home confinement, and a $2000 fine.

In United States v. Truck, Trailer, and Equipment Inc.,the company and two employees pled guilty to RCRA and Clean Water Act violations for illegally dumping waste generated by the company into a nearby stream, wetlands, and woods. The company was sentenced to pay a $50,000 fine and $50,000 in restitution to the Mississippi Department of Environmental Protection, and the employees were sentenced to serve time, home detention, and probation.

Criminal Prosecutions for CFC Smuggling. Eleven defendants pled guilty in United States v. Himes, a case involving a complex, multi-million dollar scheme to import and sell chlorofluorocarbon gases (CFCs) under false pretenses. The purpose of the scheme was to obstruct or defeat liability for the payment of excise and income taxes from 1995-1998. Several defendants have been sentenced to terms of up to 15 months imprisonment. The three principal defendants are awaiting sentencing.

Protecting Workers and Others Exposed to Hazardous Substances. In United States v. Keystone Environmental Services, the company purchased false hazardous waste and emergency response certificates for approximately 50 untrained employees in order to obtain a new contract to clean up an oil spill in the Patuxent River. It pled guilty to a felony false statement count and was sentenced to pay a $100,000 fine. In United States v. James T. Aneckstein, Aneckstein was sentenced to serve 15 months imprisonment and ordered to pay a $40,000 fine for failing to warn his tenants about lead paint hazards and for lying and forging documents in an attempted cover-up, while his company was sentenced to serve three years probation. In United States v. Industrial Hygiene Technologies Inc.(IHT), the company, its president Mark Sovich, and vice-president Michael MacCabe pled guilty to two felony false statements for purchasing false certificates for themselves and for numerous employees. The untrained employees with false certificates worked on asbestos removal for the District of Columbia Public Schools Asbestos Abatement Response Action Program and at the Pentagon. Sovich and MacCabe each were ordered to serve a one-year term of probation and pay a $50,000 fine. IHT was ordered to pay a $100,000 fine.

Endangered Species Act Prosecutions. West Coast Homebuilders, Inc., owned by Albert Seeno, Jr., pled guilty to two ESA violations for intentionally draining two ponds on a home development that contained breeding populations of threatened red-legged frogs. Seeno directed an agent of West Coast to drain both of the ponds after he learned from an environmental consultant that they contained red-legged frogs. The company was sentenced and ordered to pay $1 million in criminal fines and restitution: a $300,000 criminal fine, a $300,000 civil penalty, $300,000 in restitution, $75,000 to the California Department of Fish and Game Preservation Fund and $25,000 to the Alameda County Hazardous Materials Program Training and resources trust account. Seeno also agreed to preserve a 640-acre parcel of land known as Morgan Territory Ranch that provides habitat for the frog.

In another ESA prosecution, Courtney Smith, Jr. was sentenced to 24 months incarceration, a fine of $10,000 and restitution in the amount of $17,500 for violations of the ESA as well as the Lacey Act and the Native American Graves Protection and Repatriation Act (NAGPRA) for selling Native American remains, mounts of endangered animals and state protected wildlife. Restitution of $17,500 was ordered as a statutorily required cost for the re-interment of the Native American human skulls and foot bones Smith sold in interstate commerce. Smith's son, Courtney Smith, III was fined $7,500 and placed on probation for one year for a violation of the Lacey Act for the offer to sell parts of an endangered rhinoceros mount. Smith's corporation pled guilty to three felony violations of the Lacey Act, the Archeological Resources Act and NAGPRA, and was fined $10,000.

Bald and Golden Eagle Protection Act Prosecution. Terry Antoine, a member of the Cowichan Band of the Salish Tribe in British Columbia, Canada, was sentenced to 24 months in jail and ordered to pay $147,000 in restitution for trafficking in bald eagle parts. During 1997 and 1998, Antoine hired shooters to kill several hundred bald eagles in Canada, butchered them there to remove their wings, tails, feet, and feathers, then smuggled the parts into the United States and sold them to buyers here.

Ongoing Reptile Smuggling Ring Prosecutions. In a prosecution jointly handled by Division prosecutors and the U.S. Attorney's Office in the Northern District of California, two individuals that had been indicted with Malaysian wildlife dealer Keng Liang "Anson" Wong were sentenced after being found guilty in connection with charges that they illegally imported six Federal Express shipments containing over 100 animals protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Endangered Species Act. Defendant Lewis, a reptile dealer in the Phoenix area, and Defendant Paluch, a Federal Express employee, worked together to bring packages containing smuggled wildlife into the U.S. using false names and addresses. They were the ninth and tenth individuals successfully prosecuted in the Wong case thus far, bringing the total number of felony convictions obtained to over 75. Lewis was sentenced to 36 months imprisonment, Paluch to 24 months imprisonment.

Russian Caviar Smuggling. CITES protects sturgeon, a fish of prehistoric origin which is killed in the process of obtaining its roe for use in making caviar, but a major threat to its survival is the trade in black market caviar smuggled from Russia and other Caspian Sea nations. We have brought a series of prosecutions against several Russian citizens for smuggling or attempting to smuggle hundreds of pounds of Russian caviar into the United States, resulting in guilty pleas with jail time for all defendants. One such case involved Viktor Tsimbal, a Russian national and the former president of Beluga Caviar Inc., who pled guilty to charges of conspiracy, smuggling, and money laundering. Tsimbal headed a wildlife smuggling conspiracy in which he provided airline tickets, hotel accommodations and money to individuals who transported pre-packed luggage filled with black market caviar worth hundreds of thousands of dollars from Europe to Miami.

Training in Prosecuting Poaching. We provided training across the United States in the investigation and prosecution of poaching offenses. This training included both outreach to a range of investigative agencies to encourage them to identify and prioritize these cases, as well as training for prosecutors to ensure that the cases which are investigated and referred receive appropriate attention.

PROTECTING OUR NATION'S AIR AND WATER

Reducing Air Pollution from Coal-Fired Power Plants. During the past year, the Division continued to vigorously litigate Clean Air Act enforcement actions against coal-fired electric power generating plants. The failure of these power plants to install emissions control technology during major plant upgrades has resulted in tens of millions of tons of air pollution, leading to adverse health effects on asthma sufferers, the elderly and children, including premature deaths, and to forest degradation, waterway damage, reservoir contamination, and deterioration of buildings. The Division's settlement of one of these cases (against PSEG Fossil LLC) will achieve major reductions in New Jersey's air pollution, reducing PSEG's annual nitrogen oxide emissions by over 80% and sulfur dioxide emissions by 90%. New Jersey was a party to the settlement which also requires the defendant to pay $1.4 million in civil penalties and $6 million in environmental projects to mitigate the harm its alleged violations had caused.

Addressing Pollution at the Nation's Oil Refineries. The Division has moved aggressively to protect the nation's air quality by continuing its national enforcement initiative to address Clean Air Act violations at the nation's oil refineries. Building on previous successes, this year we secured comprehensive settlements with five additional petroleum companies: Conoco, Premcor, Navajo Refining, Montana Refinery and Murphy Oil. These settlements will reduce toxic emissions at nine refineries in seven states, require the payment of $13.65 million in civil penalties, and the performance of supplemental environmental projects worth $10.1 million. Seven states joined in these settlements. Three settlements require the defendants to install state-of-the-art pollution control equipment; one defendant has agreed to surrender its operating permit. To date, this initiative has addressed more than 40% of the nation's refining capacity.

Enforcement Initiative Against the Ethanol Industry. Joined by the State of Minnesota, the Division lodged 12 consent decrees to resolve Clean Air Act claims against 12 Minnesota dry corn mill operators that produce ethanol in a strong start to this new enforcement initiative. To achieve compliance with the Clean Air Act, the settlements will require the defendants to install state-of the-art control technology on all units that are significant sources of pollution and pay a civil penalty. The settlements will set the standard for future practices in the ethanol industry, which has historically underestimated toxic emissions from feed dryers, cooling cyclones and fuel loading operations.

Leveling the Playing Field in the Wood Products Industry. The Division reached a settlement with Boise Cascade Corporation, the fifth largest engineered wood products manufacturer in the country, successfully concluding EPA's wood products initiative, which was the first industry-wide effort to enforce EPA's New Source Review program under the Clean Air Act. Having previously reached settlements with Boise Cascade's principal competitors, this consent decree requires it to spend an estimated $14.84 million to install air pollution control technology at its eight facilities located in four states. The required controls will result in reductions of 2,166 tons per year of pollution. In addition, Boise Cascade will pay a civil penalty of $4.35 million and spend $2.9 million on supplemental environmental projects to ensure that it does not reap an economic gain from its longstanding noncompliance.

Reducing Dangerous Air Emissions at a Chemical Plant. The Division lodged a consent decree resolving Clean Air Act claims against Ferro Corp. for illegal emissions of the human carcinogen ethylene dichloride at its chemical plant in Hammond, Indiana. For two decades the facility, operated by Ferro's Keil Chemical Division, illegally emitted excessive levels of this hazardous pollutant. During the course of negotiations, the offending process equipment was dismantled, abating the risk to human health and the environment. The consent decree obligates Ferro to pay civil penalties of $3 million, conduct an environmental audit of the facility's remaining manufacturing processes, and perform a brownfields clean-up project in the City of Hammond.

Protecting Human Life and the Nation's Water Supply and Natural Resources From Grossly Negligent Facility Operators. The Division filed complaints concerning two incidents in which the gross negligence of a facility operator caused the loss of human life, endangered the nation's water supply and resulted in catastrophic damage to natural resources and habitat. The first complaint was filed under the Oil Pollution Act against two pipeline operators (Olympic Pipe Line Co and Shell Pipeline Co.) for claims arising from a major spill of gasoline into a river in Bellingham, Washington. The gasoline ignited, killing three youngsters, and the casualty count and property damage would have been much worse had the spill ignited after it reached the part of the river that flows through the center of town. The second complaint was filed against Motiva Enterprises LLC for violations of three federal environmental statutes stemming from a spill of concentrated sulfuric acid and petroleum products at its Delaware City refinery. The spill occurred after a tank containing more than 1 million gallons of spent sulphuric acid exploded, dissolving one man and seriously injuring six others. The complaint alleges that Motiva was guilty of gross negligence in operating the storage tank.

Protecting the Nation's Water Supply and Natural Resources from Hazardous Pollutants. The Division settled claims against ExxonMobil Oil Corporation relating to a spill of crude oil from a pipeline in Los Angeles County that fouled a 15-mile stretch of the Santa Clara River. The spill killed aquatic life in the River, including an endangered species of fish, as well as causing extensive habitat damage. The settlement requires ExxonMobil to pay the United States and the State of California total of $4.7 million, most of which will be used to preserve and restore habitat in the River and other natural resources injured by the spill. The Division also lodged a consent decree settling claims for damages to natural resources caused by extensive PCB contamination in sediments of Wisconsin's Fox River and Green Bay. The settlement with one of several major parties responsible for the contamination will provide more than $10.8 million for extensive natural resource restoration work. Two States and two Indian tribes joined in the settlement.

Ensuring the Integrity of Municipal Wastewater Treatment Systems. The Division lodged consent decrees with six municipalities - Toledo, Cincinnati, and Youngstown, Ohio, Baltimore, Maryland, Mobile, Alabama, and Greenwich, Connecticut - settling violations of the Clean Water Act in connection with the cities' operation of their wastewater collection and treatment systems. The consent decrees provide for the cities to spend an estimated $1.780 billion dollars in injunctive relief to bring their sewage treatment systems into compliance with the Clean Water Act, to pay civil penalties totaling $1.559 million and to perform supplemental environmental projects worth at least $6.2 million. Collectively, the consent decrees address numerous unpermitted discharges of pollutants and raw sewage into waters of the United States. One, with the City of Cincinnati, is a partial consent decree intended to provide interim relief for unauthorized discharges from its sanitary sewer system while the city develops a comprehensive plan to address the discharges.

Ensuring Safe Drinking Water in California. In United States v Alisal Water Co., the Division acted aggressively to protect the safety of drinking water supplied to residents in Monterey County, California, when it successfully sought the extraordinary relief of requesting a court to appoint a receiver to take over the privately-owned drinking water companies supplying water to them. Pending is the court's consideration of our claim that defendants fraudulently conveyed assets into irrevocable trusts in 1997 and our request for a civil penalty.

Securing the Second-Highest Clean Water Act Judgment. Almost one year after a four week jury trial, a district court awarded the United States a civil penalty of $8,244,670 in a Clean Water Act case against Allegheny-Ludlum Co. This is the second highest Clean Water Act judgment ever awarded to the United States. The violations concerned unpermitted discharges of oil and pollutants to the Allegheny and the Kiskiminetas Rivers from five steel mills it operates outside Pittsburgh, Pennsylvania.

Upholding EPA's Improved Standards for Smog and Soot. The cornerstone of the Clean Air Act is its provision governing the setting of national ambient air quality standards for ubiquitous "conventional" pollutants such as ozone and particulate matter. In March 2002, after four and a half years of litigation, the D.C. Circuit upheld EPA's standards for ozone (smog) and fine particulate matter (soot), finding that EPA had an adequate record basis to support its regulations reducing levels of these harmful pollutants. Once implemented, these standards will prevent thousands of premature deaths, reduce hospital admissions, and provide additional protection against asthma attacks and other respiratory illnesses caused or aggravated by smog and soot.

Reducing Pollution from Diesel-Powered Trucks and Buses. In May 2002, the Division obtained a significant victory in its defense of EPA's stringent new emission limits for heavy-duty diesel truck and bus engines, and a related requirement to significantly reduce sulfur content in diesel fuel. The decision ratifies EPA's conclusions that the emission reductions required for heavy-duty diesel engines are technologically feasible, and that the reduction in diesel fuel sulfur content will not disrupt the supply of diesel fuel. It also clears the way for a new generation of less-polluting trucks and buses on our nation's streets and highways.

Affirming EPA's Authority to Ensure Required Pollution Controls. Under the Clean Air Act, states generally have primary authority, subject to EPA oversight, for issuing "prevention of significant deterioration" ("PSD") permits to major new sources of air pollution. In July 2002, the Ninth Circuit affirmed EPA's authority to issue administrative orders and take other appropriate enforcement action to ensure that states do not act arbitrarily in their implementation of the Act's permitting requirements.

Preserving Our Nations's Wetlands
. The Division obtained court orders requiring violators of federal wetland laws to pay more than $1 million in civil penalties and to restore or create more than 150 acres of wetlands. Our success in this area included a very favorable settlement in United States v. Simpson, which required the violator to restore portions of the Salmon River - a critical habitat for salmon - and adjacent wetlands and to pay a substantial civil penalty. The Division also successfully defended the imposition of a $4 million stipulated penalty as a result of a developer's violation of the terms of a consent decree related to the destruction of wetlands in Indiana. We also coordinated the first-ever joint state/federal conference on wetlands protection and enforcement, in cooperation with EPA, the Army Corps of Engineers and four State associations

Pipeline Safety. One of the few pieces of environmental legislation to pass in 2002 was the Pipeline Infrastructure Protection to Enhance Security and Safety Act (H.R. 3609) This Act made important changes to the Pipeline Safety Act that will require pipeline operators to take additional measures to ensure the integrity of the thousands of miles of gas and hazardous materials pipelines that cross this country and that will strengthen our arsenal of enforcement tools to address violations of the statute. These amendments grew in part out of a terrible pipeline explosion in Bellingham, Washington. The U.S. Attorney's office in Seattle led the way in prosecuting this case. The Division and the Executive Office of the United States Attorneys worked together to obtain improvements to the enforcement provisions of this statute.

World Summit on Sustainable Development. We played a significant role in formulating the U.S. position on domestic environmental governance for the World Summit held in South Africa this summer and conducted several courses on enforcement at a Summit-related institute.

ENSURING CLEANUP OF HAZARDOUS WASTE

Securing Cleanup of Hazardous Waste Sites by Responsible Parties. In four notable settlements, the Division secured the agreement of responsible parties to conduct both initial and final clean-up of contaminated sites across the United States.


In Alabama, we lodged a consent decree with Pharmacia Corporation (formerly Monsanto) and Solutia, Inc. providing for the emergency cleanup of area residences in Anniston, a comprehensive study and evaluation of risks to human health caused by polychlorinated biphenyls (PCBs), establishment of a $3.2 million foundation to assist in funding special education needs for Anniston-area children, and the recovery of all future response costs incurred by the United States in overseeing the cleanup.


In New Jersey, a district court entered a consent decree requiring Ciba Specialty Chemicals Corp. and the Novartis Corporation to implement a source control remedy at the Ciba-Geigy Superfund Site in Toms River. The Site is a 1300 acre parcel of land where approximately 320 acres were devoted to the manufacture of various hazardous chemicals. The source control remedy is estimated to cost $90 million and, in addition to other remedial work performed by defendants to address groundwater contamination, will bring the total amount spent by defendants on cleanup work to an estimated $150 million.


In California, the Division lodged the final consent decree in connection with the Operating Industries Inc. Superfund site in Monterey Park. The United States has entered into seven prior consent decrees and EPA has issued two unilateral orders for the site, a 190-acre landfill which operated from 1948 until 1984 and accepted both industrial and municipal wastes. To date, settlements between all parties have totaled more than $600 million. The final decree provides for the payment of $340 million by 161 defendants and will ensure implementation of the final phase of the cleanup.


Finally, in Montana, the court entered a consent decree resolving the United States' claims against ARCO and five other settling defendants for the Berkeley Pit in Butte. The Berkeley Pit was the site of extensive open pit mining from 1955 through 1982, leaving a hole in the middle of Butte roughly a mile wide and a half mile deep, now filled with over 25 billion gallons of highly acidic mine waste, with roughly 6 million additional gallons pouring in daily. The consent decree requires ARCO and the other defendants to construct a treatment plant to divert and treat the water before it is discharged away from the Pit, either into a local stream or into an adjacent mine leaching operation. The settlement will recover 98% of total site remediation costs, which are estimated at over $110 million. The State of Montana joined the settlement.


Securing Cleanup of Hazardous Waste on Federal Land. Three consent decrees were entered concluding the Division's CERCLA action on behalf of the National Park Service to secure cleanup of the Krejci Dump Site in Summit County, Ohio. The site is located within the Cuyahoga Valley National Park and was formerly used as an industrial dump and scrap yard. Under the first decree, Ford Motor Co. and General Motors Corp., who had sent waste to the site, agreed to perform the long-term remedy valued at approximately $29 million. In the second decree, five additional companies who sent waste to the site agreed to pay $4.3 million toward cleanup and $477,500 toward natural resource restoration. The third decree resolved the liability of 3M Company, the only defendant who refused to settle prior to trial. After 3M was adjudged liable under CERCLA for cleanup costs, it agreed to pay the Department of Interior $15.5 million to reimburse the government's costs.


Pursuing Corporate Assets to Fund Cleanup Responsibilities. In June, we intervened in an ongoing bankruptcy adversary proceeding against W.R. Grace & Co. to set aside two corporate reorganizations that we believe constitute fraudulent conveyances. As part of the reorganizations, Grace transferred assets valued at between $3.8 and $4.5 billion in exchange for a $1.2 billion capital contribution, effectively rendering it insolvent and unable to satisfy its environmental liabilities, including those at issue in our CERCLA cost recovery case against Grace in connection with the Libby Asbestos Site in Libby, Montana. At the Libby Site, EPA has spent more than $57 million in removing large amounts of asbestos from Grace's former vermiculite mining and processing facilities and remedying asbestos-contaminated mining and process wastes that were given away to Libby homeowners for use in their gardens and to local schools for use on athletic tracks. Several hundred Libby residents have died from asbestos-related disease and cancer over the years, and recent screening studies have shown that a significant portion of the adult population in Libby has asbestos-related scarring in their lungs. In May, the court entered a consent decree in a related case that resolves our request for access to certain parcels of land at the Libby Site and for a civil penalty for Grace's failure to comply with EPA's access requests. The consent decree provides for an allowed claim of $71,000 in Grace's pending bankruptcy as a civil penalty and Grace's performance of a supplemental environmental project to provide asbestos-related health care services to Libby residents at a cost of $2.75 million.


On August 9, 2002, the Division filed a complaint and motion for preliminary injunction against ASARCO, Inc. to enjoin the fraudulent transfer of ASARCO's most valuable asset - its majority ownership interest in a Peruvian copper company - to its parent corporation, Americas Mining Co. Our complaint alleged that the proposed insider sale was for significantly less than the actual market value of the stock. As a result of its extensive mining operations, ASARCO has hundreds of millions of dollars of environmental debts and liabilities to the United States at numerous contaminated sites across the country. Because the proposed sale would severely reduce ASARCO's ability to meet those obligations, the complaint alleged that the transfer would constitute a fraudulent conveyance under the Federal Debt Collection Procedures Act and Federal Priority Statute.


Also in August, a court approved our bankruptcy settlement with debtors Fruit of the Loom, NWI Land Management, and Velsicol Chemical Corp. Under the agreement, the debtors will transfer the portions of seven Superfund sites that they own to an independent custodial trust and will also dedicate assets to fund cleanup actions and natural resource damage restoration for the seven sites. Among the assets committed to address these environmental liabilities are $4,292,808 in cash, proceeds from general liability insurance claims estimated to be worth $20 to 30 million, recoveries from preferred shares of stock in Velsicol's parent corporation, and proceeds from defendants' cost overrun insurance policies. Illinois, Michigan, New Jersey, and Tennessee were also parties to the settlement.

Paving the Way for Clean up of PCB Contamination in the Hudson River.
The Division succeeded in defeating efforts to halt EPA's selection of a remedy for addressing extensive PCB-contamination in the Hudson River.


Protecting EPA's Ability to Pursue Hazardous Waste Violations. The Tenth Circuit held that EPA can maintain its own enforcement action in a state with a federally-authorized hazardous waste program after the state enters into a settlement with the violator for related violations arising out of the same set of circumstances, rejecting an Eighth Circuit decision to the contrary.


Parent Corporation Liability Under Superfund. In one of the first appellate cases to address the issue of when a parent corporation is liable for waste disposal practices of its subsidiaries under the Superfund statute, the First Circuit held in United States v. Kayser-Roth Corporation that the district court did not abuse its discretion in denying Kayser-Roth relief from a 1990 declaratory judgment of liability as an operator for releases of hazardous substances from its subsidiary's facility.


DEFENDING VITAL FEDERAL PROGRAMS AND INTERESTS


Promoting Military Preparedness and National Security. Working closely with our counterparts in the military, we have committed significant time and resources to ensure that military training and operations are not disrupted or delayed. We continued our unbroken record of wins at both the trial and appellate court levels in supporting live-fire military exercises at and around Vieques Island in Puerto Rico. We also developed a successful defense to claims brought against the Navy regarding its plans to expand a Trident nuclear submarine base in Maine, committed substantial resources to insuring that Air Force and Marine operations at Goldwater Air Force Base in Arizona could continue after a court-ordered remand, obtained a dismissal in a challenge to the Navy's Littoral Warfare Advanced Development project (a sonar testing effort designed to enhance submarine detection), and worked closely with the Navy to craft an equitable remedy regarding its unintentional take of migratory birds during live-fire training activities in the Northern Marianas.


Successful Defense of the Army's Chemical Weapons Demilitarization Program. We continue to prevail in our defense of the Army's $15 billion Chemical Weapons Demilitarization Program. Pursuant to the United States' treaty obligations, Congress has charged the Army with responsibility for destroying chemical weapon stockpiles at their current locations. We are handling multiple pieces of litigation related to the destruction of chemical weapons across the country. In Alabama, we secured a voluntary dismissal of the Alabama Governor's action to enjoin the Army's incineration of chemical weapons, and in Arkansas, we represented the Army as an intervener in a challenge to state-issued permits for the Pine Bluff Chemical Agent Disposal Facility in Little Rock. In March 2002, the court found the decision to issue the permits to be "a thorough, well-reasoned one and supported by substantial evidence." We are now defending an appeal of that decision to the Arkansas Court of Appeals.


Helping workers and Agencies affected by the Events of September 11, 2001. We assisted the General Services Administration by filing two cases involving condemnation of leasehold estates in office buildings in downtown Manhattan to house federal agencies displaced by the 9/11 atrocity. Merely getting the cases filed, much less on the expedited basis required by the situation, presented daunting challenges. With telephonic and fax communication between New York and Washington sporadic at best, we drafted the takings documents that would normally have been the responsibility of GSA and arranged the actual physical filing of the cases. This effort resulted in the earliest possible housing of, and thus resumption of work by, displaced federal agencies. During this past fiscal year, the government has achieved a settlement in both cases in which the landowners have agreed to accept as just compensation the government's monthly rental payments made to date.


Our ongoing work with GSA involves close coordination regarding the possible use of eminent domain to institute security measures in buildings occupied by federal workers. Most of these buildings are under lease to the government and the government's associated security measures now typically involve restrictions on direct access, ID checks, use of metal detector devices, electronic scans of vehicles entering garages, but not all lessors have been amenable to the government imposing these security measures in common areas, such as building lobbies. Our work has been to draft estates, usually appurtenant to the government's existing lease in any given building, restricting use of the building to that which can be made in conformity with the government's security restrictions. Although these efforts to date have resulted in negotiated settlements short of filing of condemnation actions, we have several potential cases that are awaiting final negotiation efforts between the parties. We expect this work to grow, as well as that associated with increasing security along the borders between the United States and Mexico and Canada.


Protecting Energy Policy and Infrastructure. When the Governor of South Carolina sought to halt plutonium shipments from the Energy Department's Rocky Flats site to its Savannah River site for long-term, secure storage, we defeated a motion for preliminary injunction and obtained summary judgment on behalf of the Energy Department, thereby ensuring timely shipments that were critical to maintaining compliance with an agreement with the State of Colorado. The Fourth Circuit affirmed the district court's decision. We also advanced the safety and supply of gasoline in the Southwest by successfully defending challenges to the construction and operation of the Longhorn pipeline, a 730-mile pipeline extending from Houston to El Paso.
Assisting the Expansion of the Cleveland International Airport. We vindicated federal interests in proceeding with expansion of the Hopkins Cleveland International Airport in Ohio in City of Olmsted Falls v. United States, defeating two separate efforts by plaintiffs to enjoin the project, and ultimately obtaining an outright dismissal of the case.


Defending Authorizations for California Projects. We have had good results in several cases defending federal agency authorizations for development. For example, in a challenge to the National Park Service's plan for the future use of a former military base as part of the Golden Gate National Recreation Area, including expansion of the Bay Area Discovery Museum and construction of a visitor center and hotel, the Court ruled for the Service, rejecting claims that the Service had not complied with various environmental requirements. We also prevailed against challenges to the expansion project at the Port of Oakland. The court rejected plaintiffs' claims that biological opinions issued by FWS and NMFS failed to adequately consider the possible impacts of invasive species which could potentially be introduced into the Bay ecosystem through the discharge of ballast water. The Court held that the federal agencies gave appropriate consideration to the potential impacts of non-native introductions, especially in light of the developing nature of this area of science.


Construction of World War II Memorial. We overcame challenges to the construction of the World War II Memorial on the National Mall, ensuring that construction of this important, high-profile project would continue expeditiously.


Protecting the Public Fisc. A significant portion of the Division's practice involves resolving the liability of federal agencies in connection with the cleanup of contaminated facilities under the federal Superfund statute. In FY2002, the Division successfully defended numerous claims of federal Superfund liability at a cost savings to the government of over $700 million, a figure seven times greater than the Division's annual budget. Significant victories include a decision by the Ninth Circuit overturning an award of almost $100 million with respect to cleanup of the McColl Superfund Site in California in United States v. Shell Oil Co, and an outright dismissal of contribution claims against the government in connection with the $150 million cleanup of the Summitville Mine Site in Colorado.


Resolving Claims Based on Restrictions Resulting from the Presence of Protected Species. In the past year, we have successfully resolved several suits claiming that landowners have been precluded from making productive use of their property due to the presence of endangered species, including the American Bald Eagle. These plaintiffs argued that these restrictions constituted a Fifth Amendment taking of their property and sought compensation. In each of these cases we were able to develop a plan whereby permanent restrictions were either lifted or reduced, enabling the landowner to resume activities on the property and protecting the United States from considerable monetary exposure. These cases also resulted in favorable and precedent setting court decisions recognizing the right of the United States to establish reasonable regulatory processes, and to subsequently modify an agency decision, without giving rise to a claim for compensation.


Protecting the National "Rails-to-Trails" Program. Through the National Trails System Act, more than 12,000 miles of recreational trails have been created from former railroad corridors which had fallen into disuse. While this program provides numerous benefits to communities and to individuals, some who own property adjacent to the trails have filed class action lawsuits contending that the creation of these trails caused a taking of their property for which they are entitled to compensation. While these cases present numerous legal and logistic challenges, we have had several significant accomplishments in the past year which have resulted in savings of millions of dollars, while also establishing important legal precedent that will aid in achieving a successful result in many other rails-to-trails cases. Our successes include favorable court decisions in a 200-person class action in Idahoand in a multi-party claim involving Vermont property, as well as concluding settlements in several longstanding cases.


Appraisal Unit Accomplishments. In support of the Division's litigation involving real property value questions, the Appraisal Unit completed 156 appraisal reviews concerning 226 tracts with a total estimated value of $835,607,953.00. In addition to the appraisal reviews which are its primary responsibility, the unit provided significant valuation assistance to a number of client agencies over the course of the year. Among the most notable efforts was the assistance provided to the United States Navy concerning several projects, including the Naval Air Station - Oceana and the Marine Corps facility at Blount Island in the Port of Jacksonville. Assistance was also proved to the General Services Administration concerning first impression valuation issues related to the Nassif Building, the headquarters facility for the Department of Transportation. Members of the unit participated in presentations at a number of national and regional meetings and seminars held by such federal agencies as the Bureau of Land Management, the Fish and Wildlife Service, the Forest Service, and the National Park Service. Appraisal Unit members also developed and prepared a two-day seminar regarding The Uniform Appraisal Standards for Federal Land Acquisitions which they presented five times during the past year at various locations around the country.


PROMOTING RESPONSIBLE STEWARDSHIP OF AMERICA'S WILDLIFE AND NATURAL RESOURCES


Challenge to Corps' Permitting in Panther Habitat. In one of an increasing number of "programmatic challenges" to agency actions, we obtained dismissal of a challenge to 23 Army Corps of Engineers' Clean Water Act nationwide permits for projects located in potential habitat of the endangered Florida panther. The court agreed with us that "programmatic" claims, for example the claim that the permits were "examples" of a program and practice of unlawful permitting and ESA consultation on the part of the Corps and the U.S. Fish and Wildlife Service, were precluded.


Everglades Litigation. In a challenge to the Corps of Engineers' efforts to avoid jeopardizing the continued existence of the Cape Sable Seaside sparrow through the operation of the Central and South Florida Project, the court deferred to the Corps' expertise and denied the Natural Resources Defense Council's preliminary injunction motion. NRDC thereafter agreed to a joint motion to stay its case while the Army Corps completes an Environmental Impact Statement on a water management plan. In a related case, the court denied a series of emergency motions for preliminary injunction seeking departure from the water levels prescribed by the Corps to balance flood protection and sparrow protection. Litigation continues on the merits, but the operational plan for this year remains intact, allowing the federal agencies to focus on future management. Finally, we continued to contribute to protection of the unique Everglades ecosystem by ensuring that acquisitions by eminent domain were effected as to approximately 2800 tracts for inclusion within the Everglades National Park and the Big Cypress National Preserve expansions. We have also begun preliminary work with the National Park Service on the acquisition of outstanding mineral interests in the Everglades National Park.


Protecting the Forest Service's Planning and Management Authority. We overcame a challenge to the Forest Service's new Planning Rule, which revised the guidelines for National Forest planning decisions, and successfully defended a suit challenging legislation which provided a grace period to timely revise the Land and Resource Management Plans which govern 191 million acres of National Forest lands. We also defended against a variety of challenges the National Fire Plan, a cabinet-level nationwide response to the devastating wildfires that swept the National Forests of the West during the summer of 2000. For example, by securing favorable settlements in these challenges to the largest timber salvage sale and burned area recovery project to date, we obtained a result that permitted approximately half of the challenged sale to go forward, preserving the projects' environmental and economic benefits, including approximately 4,000 jobs and a $77,000,000 infusion into the local economy. Concerns about the immediate fire danger to the urban interface with wildlands in the Black Hills National Forest also led to successful negotiations with the State of South Dakota, local counties, a timber industry association, and environmental groups, resulting in a modification of the settlement in Biodiversity Associates v. Laverty, which was then converted into legislation signed on August 2, 2002. The legislation has become a model for subsequent attempts to streamline administrative processes to allow more immediate action to mitigate fire dangers to Western communities.


In other Forest Service matters, the Division continued its record of creative, aggressive advocacy. The failure of the Northwest Forest Plan to deliver on the promise of sustainable timber outputs has presented serious concerns. Following complicated negotiations with a coalition of timber industry, local county and labor union representatives, we negotiated a settlement which permits the federal agencies to re-examine one of the timber-limiting protocols of the Plan to determine whether the environmental objectives of the provision could be attained through less costly and time-consuming methods. Also, in a challenge to the revised Tongass Land Management Plan, we were able to obtain a closely tailored injunction permitting the activities already planned by the Forest Service to proceed, thereby avoiding the possibility of serious economic dislocation in Southeast Alaska if timber harvesting were halted.

In addition, the Division has successfully defended a number of particular timber resource programs.

Water Rights Victories. A critical issue in the drought-stricken Southwest concerns the apportionment of water among domestic users and endangered species. In Rio Grande Silvery Minnow v. McDonald, we successfully defended the Fish and Wildlife Service's biological opinion for the Middle Rio Grande relating to the endangered silvery minnow, building on a unique arrangement earlier negotiated with the State of New Mexico. We further assisted the Bureau of Reclamation in negotiating with the City of Albuquerque to acquire an additional quantity of water to meet the flow requirements for the minnow, even though it was one of the worst drought years on record.
We also secured numerous highly favorable settlements that will protect the water supplies and flows necessary to maintain the vitality of natural resources and uses on the public lands, national forests, wild and scenic rivers, military bases, and federal reclamation projects in areas such as the Yakima River Basin in Washington, the Klamath River Basin in Oregon, and the Snake River Basin in Idaho.


Protecting the National Marine Fisheries Service's (NMFS) Management Authority. The Division defended numerous challenges from both the fishing industry and from environmental organizations regarding NMFS' management of commercial ocean fisheries through which NMFS seeks to promote both conservation of the fishery and a sustained commercial yield. On the east coast, we successfully defended an emergency rule placing regulations on the Red Crab fishery after two large catcher/processor vessels from Alaska transferred to this fishery, and also NMFS' adoption of management areas that divided lobster fisheries among New Hampshire and other States' fishermen. We also prevailed in Massachusetts to allow NMFS the time necessary to carry out its self-imposed obligations to promulgate rulemakings to protect the right whale.
On the west coast, we successfully defended NMFS' decision to exempt certain activities from NMFS' "4(d)" rule for threatened salmon stocks and its 1996 Framework Regulation and 1999 Pacific whiting allocation among four Pacific Coast Treaty Tribes.
On the international front, the court of appeals upheld the government's implementation of a provision in the 1990 Commerce Appropriations Act that embargoes shrimp products harvested with fishing technologies that may adversely affect endangered sea turtles. The court held that the law embargoes shrimp caught by vessels that do not use Turtle Excluder Devices (TEDs) on their shrimp trawls. The court rejected the environmental group's argument that Congress meant to embargo all shrimp from a nation that does not require the use of TEDs throughout its shrimp fishing fleet.


Defending Federal Protections for Endangered Species. In a victory for the protection of endangered species, the Ninth Circuit held that the Endangered Species Act and the National Wildlife Refuge System Improvement Act pre-empted a California state initiative (Proposition 4) to the extent that it banned the federal government's use of leg hold traps, which were used to protect ESA-listed species.


Defending Federal Authority to Manage Public Lands. In quiet title litigation with the State of Idaho, the Division negotiated a settlement that resolved ownership disputes with the State and augmented federal acreage with respect to hundreds of islands in the Snake River in and around Deer Flat National Wildlife Refuge. The islands that we cleared of title questions enhanced the Refuge significantly because they offer important habitat for migratory birds. We also successfully defended the National Park Service's regulation banning the use of personal watercraft outside of specially designated areas in national parks throughout the United States.


PROTECTING INDIAN RIGHTS AND RESOLVING INDIAN ISSUES

Defending Tribal and Federal Interests in Water Adjudications. We had several notable successes in water rights adjudications. These adjudications are complex, primarily defensive cases, often involving the water rights of thousands of parties, and we devote significant resources to crafting settlements that balance and recognize the interests of all parties, as opposed to litigating these cases in a winner-takes-all manner. These successes include the second largest Indian water right settlement in the history of New Mexico and more than thirty settlements in Montana water adjudications. In addition, we overcame the last objections to entry in the Montana Water Court of the Chippewa Cree Tribe's compact on the Rocky Boy's Reservation, a settlement negotiated by the United States, the State of Montana and the Tribe, and subsequently ratified by Congress. Finally, we worked with the State of Arizona, the Salt River Project, the Zuni Tribe, and private parties to craft a legislative settlement of the Zuni Tribe's water rights to the Little Colorado River.

Not all water adjudications, however, are amenable to settlement. In such litigation, we had two significant victories. In State of Washington v. James J. Acquavella, we prevailed, following trial, establishing water rights for off-reservation Indian lands and lands of the Bureau of Land Management. In United States v. Adair, in Oregon the court adopted our position regarding the quantification of tribal water rights, upholding an approach that the Department of the Interior has spent 12 years and millions of dollars developing.

Defending the United States' Ability to Take Title to Indian Land. We garnered significant successes in challenges to decisions by the Secretary of the Interior to accept title to Indian land. These challenges seek to declare important federal statutes and programs unconstitutional, as well as to vacate agency action. Notable successes include: State of Connecticut v. Norton, in which the court granted our motion to dismiss this longstanding case after the Second Circuit affirmed the Secretary's ability to acquire trust lands for the Tribe; Churchill County v. Interior, in which the court dismissed the County's challenge to the constitutionality of a statute where Congress required the Secretary to accept certain lands in trust; State of Nevada v. Interior, in which the court granted our motion to dismiss, finding the State's constitutional challenges to be frivolous, and City of Roseville v. United States in which we successfully defended a challenge to a recent Interior Department decision to accept land into trust status on behalf of the United Auburn Indian Community. These decisions established a firm groundwork for courts to dismiss summarily these increasingly common challenges to the Secretary's decisions.

Defending Indian Legislation and Programs. We have also successfully defended a broad range of federal statutes and programs protecting Indian interests. In Association of Property Owners v. Individual Council Members of the Suquamish Tribal Council, we successfully defended a HUD program to provide low-income housing for Native Americans pursuant to the Native American Housing Assistance Act. In Hamilton v. Bush, Plaintiffs challenged the constitutionality of the 1992 Crow Boundary Settlement Act, which settled a long-standing dispute between Crow Tribe, the Northern Cheyenne Tribe, and the United States regarding the proper boundary of the two tribes' reservations, arising from a nineteenth century surveying error of the 107th Meridian. The court granted our motion to dismiss on the grounds that plaintiffs lacked standing. Plaintiffs did not appeal. In Connecticut v. Interior, we prevailed in defending the Interior Department's discretion to regulate the process by which it determines how to process petitions by groups to obtain federal recognition. Finally, in Arakaki v. Cayetano, we successfully defended a challenge to the constitutionality of 1920s legislation designed to serve Native Hawaiians.

Bringing Resolution to Indian Land Claims. We devoted significant effort to resolving an ongoing land dispute along the Arkansas River in Oklahoma between three tribes, the United States, and private landowners. In a 1980 opinion, the Supreme Court held that the title to a 96-mile stretch of the Arkansas Riverbed belonged to the Cherokee, Choctaw, and Chickasaw tribes of Oklahoma. Due to changes in the course of the river, much of this riverbed had become dry land and, although still claimed by the Tribes, was occupied by private landowners. The Tribes brought a breach of trust action against the United States for failure to safeguard these lands and sought to file quiet title actions against the private landowners as well. This year, we played a central role in bringing about a settlement that resolved the Tribes' claims against the United States and compensated the Tribes, while at the same time affirming and ratifying title in the private landowners that occupy the dry riverbed lands. In addition to lifting any encumbrances on title, the bill settled the Tribes' claims for significantly less than they were claiming against the United States. Congress passed this settlement legislation in the final days of the 107th Congress.

We also worked toward a just and expeditious resolution of the New York Indian land claims, byadvancing the view in a suit involving the Cayuga Nation that New York State -- as the party that violated federal law giving rise to New York land claims -- could be held fully liable for all damages, as opposed to innocent third party landowners. The courts have adopted this view, and we have obtained dismissal of all parties from the United States' complaints in the New York land claims case with the exception of New York State. We are also actively promoting settlement negotiations with the hopes of reaching an agreement acceptable to all parties in other New York land claim cases.

Discharging the Trust Responsibility to Native Americans. We obtained good outcomes in two cases involving Tribal allegations of resource mismanagement. In one, plaintiffs sought damages for the alleged misappropriation of their sand and gravel resources and mismanagement of their funds. After we investigated the government's conduct with regard to the resources and the funds, our attorneys persuaded the plaintiffs to dismiss their case with prejudice. In addition to avoiding the cost and risk of a trial, we were able to reassure the plaintiffs about the good faith of their relationship with the government. In the other, plaintiffs sought $131 million for the alleged mismanagement of Tribal natural resources and funds. On the eve of trial, we settled the matter for less than $3 million.

We also enjoyed significant successes in other matters of importance to the trust relationship with Native Americans. For example, we established an important precedent in protecting the National Indian Gaming Commission's authority to enforce statutory requirements with regard to Indian gaming in Native Village of Barrow v. NIGC. In that suit, the Division convinced the Court to uphold the NIGC's legal interpretation of the Indian Gaming Regulatory Act's requirement that restricts Indian gaming to land over which a Tribe exercises governmental power. In Seminole Nation v. Norton, we vindicated the Interior Department's decision to withhold Tribal benefits from the Seminole Nation until such time as the Tribe reversed its decision to exclude members of African-American descent from participating in Tribal government. The Section's victory protected the civil rights of Native Americans who had been illegally ousted from their Tribe and created a significant precedent concerning the Interior Department's authority to oversee and regulate a Tribe's eligibility for benefits provided to federally recognized Tribes.

SUPPORTING THE DIVISION'S LITIGATORS

Improved Litigation Support Technology. ENRD's Office of Litigation Support has assumed the chairmanship of a Department technology working group to review new software. The latest project for the group has been to purchase "enterprise licenses" for CaseSoft and Concordance. This purchasing method, akin to buying in bulk, resulted in significant savings to the Department. In a related effort, we are working with the Executive Office of U.S. Attorneys to develop software compatibility standards to ensure that communications and work-sharing between ENRD and U.S. Attorneys is seamless.

Upgraded Technology Infrastructure. In FY 2003, all litigators and staff will receive new desktop computers equipped with the newest available versions of ENRD's standard software applications, as well as new equipment to facilitate electronic litigation as well as desktop litigation support software. Extensive planning has gone into this project, network hardware and applications have been upgraded, and new printers have been installed throughout the Division to prepare for the roll-out of the new system next year.

Electronic Document Management. ENRD laid the foundation for the Division's attorneys to manage electronic case information by implementing a pilot project to scan case-related mail as it arrives in the Division, then forwarding the scanned images via e-mail to attorneys. This technology can enhance mail delivery, make case-related mail available to multiple attorneys and to those traveling, eliminate paper, and free support staff to focus on other duties. The pilot project was a success, and we are undertaking a cost-feasibility analysis for full implementation in the Division. We also opened a "scanning lab" in our Denver Field Office, similar to the lab in Washington D.C., to scan digital images of case related documents into databases. This will allow us to process case documents more efficiently, and meet the new requirements for electronic discovery and litigation in electronic courtrooms.

Real-Time Deposition Capability. ENRD established a facility for capturing depositions in real time. Using software manufactured for this purpose, attorneys connect to a deposition through video conference technology while receiving a live feed of the transcript through an Internet connection. Attorneys can edit, make notes and review previous testimony in the transcript while it is being typed by the court reporter. This capability increase productivity and help save time and money.

ENRD's Transition to E-Filing. The Division has developed a workgroup on electronic filing of court pleadings ("e-filing") and arranged for staff to receive software and training. Through our participation in the Department's E-Filing Workgroup, we have started developing a training video, helped other Department components move to e-filing, and provided feedback and recommendations to the judiciary via the Administrative Office of the Federal Courts. We have also written an article on e-filing for the American Bar Association which will assist in the move to electronic litigation, and drafted statutory provisions recently enacted into law that address these issues.

Last Updated: 12/16/2009
Updated April 13, 2015

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