Area of Responsibility
Categories of Litigation
Organization and Information
Processing and Handling Cases—Special Provisions
Authority of United States Attorneys to Initiate and Defend Actions Without Prior Authorization, i.e., Direct Referral Cases
Actions to Recover Money to be Instituted Only Where a Judgment is Collectible
|Authority of United States Attorneys to Initiate or Otherwise Litigate Actions Without Prior Authorization, i.e., Direct Referral Cases|
Actions Not Subject to Direct Referral to United States Attorney
Prior Authorization Needed to Initiate Action
District Court Litigation—Generally
Settlement and Dismissal of Cases—Generally
Transmittal of Compromise Offer to Natural Resources Section—Recommendations With Respect to Acceptance
Authority of United States Attorneys to Settle or Dismiss Direct Referral Cases
5-7.001 - Establishment
The Natural Resources Section was created by Order of June 28, 1960, consolidating the Trial Section and the Water Resources Section, as modified by the ENRD Directive No. 14-86 of April 28, 1986, consolidating the Indian Claims Section into it.
[Updated May 2018]
5-7.100 - Area of Responsibility
The Natural Resources Section handles all pending and contemplated cases, matters and proceedings in the trial courts, assigned to the Environment and Natural Resources Division, except condemnation proceedings brought by the United States and matters specifically assigned to the Indian Resources Section, the Wildlife and Marine Resources Section, the Environmental Crimes Section, Environmental Defense Section, and the Environmental Enforcement Section.
[updated April 2018]
5-7.120 - Categories of Litigation
The Natural Resources Section supervises and conducts litigation arising under several different classes of statutes, described below, and also under treaties and agreements with Indians, Executive Orders, common law, and the laws of various states. The listing is not exhaustive, but illustrative, and contains the primary statutes under which litigation arises.
- National Environmental Policy Act and similar review and consultation statutes. Regardless of the agency involved: 1) the National Environmental Policy Act of 1969, 42 U.S.C. § 4321; 2) the National Historic Preservation Act of 1966, as amended, 16 U.S.C. § 470 (for all such cases, see JM 5-7.300); and 3) Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-666c, except § 666a (see JM 5-10.120).
- Civil construction and operation of projects and facilities. Chief among these statutes are: 1) the Federal-Aid Highway Act, 23 U.S.C. § 101, 2) Statutes relating to flood control projects, 33 U.S.C. § 701, and other civil works authorities of the U.S. Army Corps of Engineers, some of which are codified at 33 U.S.C. § 540.
- Federal Land and Resource Management. The statutes under which the Bureau of Land Management, the Forest Service, the Fish and Wildlife Service and the National Park Service administer lands and resources under their jurisdiction, excepting those matters related to wildlife management delegated to the Wildlife and Marine Resources Section (see JM 5-10.100). Chief among these statutes are: 1) (Bureau of Land Management) Federal Land Policy and Management Act, 43 U.S.C. § 1701, Taylor Grazing Act, 43 U.S.C. § 315; 2) (Forest Service) "Organic Act of 1897", 16 U.S.C. § 471, National Forest Management Act, 16 U.S.C. § 1601; Multiple Use Sustained Yield Act 16 U.S.C. § 528; 3) (Fish and Wildlife Service) National Wildlife Refuge System Administration Act, as amended, 16 U.S.C. §§ 668dd, 668ee; 4) (National Park Service) National Park Service Act, 16 U.S.C. §§ 1-4, and the authorizing statutes for individual units of the National Park System, 16 U.S.C. §§ 21-460mm, and the Historic Sites, Buildings and Antiquities Act of 1935, 16 U.S.C. §§ 461-467.
- Mineral exploration and development. Statutes governing mineral activity on federal lands and the outer continental shelf: 1) General Mining Law of 1872, as amended, 30 U.S.C. § 22; 2) Mineral Leasing Act, 30 U.S.C. § 181; 3) Mineral Leasing Act for Acquired Lands, 30 U.S.C. § 351; 4) Outer Continental Shelf Lands Act, 43 U.S.C. § 1331; 5) Federal Oil and Gas Royalty Management Act of 1982, 30 U.S.C. § 1701.
- Indian cases. 1) Suits by Indian tribes, individuals or allottees against the United States under treaties and agreements with Indians, and in the administration of statutes governing Indian lands, Indian resources, Indian assistance programs, Indian gaming, and actions with respect to tribal self-government, and 2) Alaska Native Claims Settlement Act, 43 U.S.C. §1601.
- Water Rights and Projects. 1) Reclamation Act of 1902, as amended, 43 U.S.C. § 431 et seq., and other project authorizations of the Bureau of Reclamation; and 2) McCarran Act of 1952, 43 U.S.C. § 666, involving adjudication of federal water rights in state courts, except for Indian water rights (see JM 5-5.100).
- Boundaries, Quiet Title and Navigation. 1) Quiet Title Act, as amended, 28 U.S.C. § 2409a, including suits by states regarding navigability under the Equal Footing doctrine, 2) Sections 9 and 11 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, 404, and 3) Submerged Lands Act of 1953, 43 U.S.C. § 1301.
- Other statutes of general applicability. 1) Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491 (for all matters within the responsibility of the Environment and Natural Resources Division (JM 5-1.100)), 2) Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201, 3) Coastal Zone Management Act, 16 U.S.C. § 1415, 4) Alaska National Interest Lands Conservation Act of 1980, Pub.L. No. 96-487, and 5) Wilderness Act of 1964, 16 U.S.C. § 1131.
[cited in JM 5-7.300; JM 5-10.100; JM 5-10.120]
5-7.200 - Organization and Information
The Section is administered by a Chief, Deputy Chief(s), and Assistant Chiefs. Information related to any matter in the Section may be sought by calling 202-305-0440 or by email to the Chief or a Deputy Chief of the Natural Resources Section. Cases are assigned according to experience, expertise and workload. The Section makes available to the Department, including U.S. Attorney’s offices, a listing of the expertise of Section personnel. Information on a specific case should be sought from the attorney assigned. Information on case assignment is available from the docket clerk, 202-305-0487.
5-7.300 - Processing and Handling Cases—Special Provisions
- National Historic Preservation Act.The Department of Justice has agreed, pursuant to 16 U.S.C. § 470k, to notify the Advisory Council on Historic Preservation of all cases involving the National Historic Preservation Act, 16 U.S.C. § 470 , or regulations promulgated thereunder (36 C.F.R. Part 800). The Advisory Council will rarely be a party to the litigation, but the Council is charged, inter alia, with advising the President and Congress on matters relating to historic preservation and with reviewing federal, federally assisted, and federally licensed undertakings affecting cultural properties.
Many of these cases involve proposed alterations to, or demolition of, historic structures, and may originate as temporary restraining orders. It is especially important, therefore, that the Section receive early notice of these cases, so that it can then notify the Advisory Council. Accordingly, upon receipt of any complaint raising an issue under the National Historic Preservation Act, the United States Attorney's Office should contact the Section immediately at 202-305-0440, and the Section will notify the Council. In the event a request for a temporary restraining order is filed before the case is assigned to a Natural Resources Section attorney, the Chief of the Section should be notified.
- Biotechnology Litigation. Litigation involving biotechnology and its environmental implications is handled in the Environment and Natural Resources Division. Within the Division, the cases—whether filed by complaints in the district courts or by petitions for review in the courts of appeals—are assigned to a team of attorneys from the Division, usually from Natural Resources Section (see JM 5-7.120), Environmental Defense Section (see JM 5-6.130), or the Wildlife and Marine Resources Section (see JM 5-10.120), as appropriate, depending on the statutes identified and claims raised. If such litigation is filed in your district, please contact the Chief of any of the above-stated sections who will contact the other appropriate sections.
[cited in JM 5-7.120; JM 5-10.120]
[Updated April 2018]
5-7.310 - Authority of United States Attorneys to Initiate and Defend Actions Without Prior Authorization, i.e., Direct Referral Cases
The authority of United States Attorneys to initiate cases under the supervision of the Natural Resources Section is set forth in JM 5-1.310.
[Updated April 2018]
5-7.311 - Actions to Recover Money to be Instituted Only Where a Judgment is Collectible
No action for the recovery of money only shall be instituted unless the referring agency supplies satisfactory proof that a judgment, if recovered, would be collectible.
[Updated April 2018]
5-7.312 - Authority of United States Attorneys to Initiate or Otherwise Litigate Actions Without Prior Authorization, i.e., Direct Referral Cases
Subject to the provisions of JM 5-1.310, United States Attorneys are hereby authorized to act in the following matters in coordination with the Natural Resources Section, in response to service on the United States, without assignment of the case from the Environment and Natural Resources Division:
- Actions to recover possession of, or quiet title to, property from tenants, squatters, trespassers, or others, and actions to enjoin trespass;
- Actions to recover damages resulting from trespass when the amount of the claim for actual damage based upon an innocent trespass does not exceed $1 million, and actions to recover amounts exceeding $1 million
- if the actual damages are $1 million or less and applicable state law permits the recovery of multiple damages (e.g., double or treble) for either a willful or innocent trespass; or
- if the actual damages are $1 million or less, but the action is for conversion to obtain recovery of the enhanced value of property severed and removed in the trespass;
- Actions to collect delinquent rentals or damages of not more than $1 million for use and occupancy;
- Actions to collect costs of forest fire suppression and other damages resulting from such fires;
- Actions to collect delinquent operation and maintenance charges of not more than $1 million accruing on Indian irrigation projects and federal reclamation projects;
- 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 or securities have been assigned by the tribal organizations to the United States; and
- Actions in which the United States is named as a party pursuant to 28 U.S.C. §§ 2410(a)(3), (4) (i.e., actions to partition or condemn property on which the United States has a lien).
See ENRD Directive No. 2016-04.
5-7.320 - Actions Not Subject to Direct Referral to United States Attorney
Responsibility for the handling of cases under the supervision of the Natural Resources Section is assigned by the Chief of the Section under the provisions of JM 5-1.326.
5-7.321 - Prior Authorization Needed to Initiate Action
Except for cases authorized to be filed by JM 5-1.310 no case under the supervision of the Natural Resources Section may be initiated by a United States Attorney without the prior authorization of the Assistant Attorney General.
5-7.500 - District Court Litigation—Generally
The general instructions set forth in JM 5-5.100, with respect to the handling of litigation apply in every respect to the litigation of the Natural Resources Section. It is of the utmost importance that complaints filed against the federal government and federal officials in matters relating to the area of responsibility of the Natural Resources Section be transmitted promptly to the Chief of the Section.
5-7.520 - Lis Pendens
Whenever required by the nature of the case, the attorney assigned to the case shall, or assure that the agency shall, file or record a notice of the pendency of the action or lis pendens among the proper local records, except in those jurisdictions where the law is settled that the commencement of the action is notice to all persons affected.
5-7.530 - Judgments
United States Attorneys should note and comply with the instructions relating to the recording, collection and enforcement of judgments set forth in JM 5-5.151 through 5-5.156.
5-7.600 - Settlement and Dismissal of Cases—Generally
Except with respect to direct referral cases (discussed in JM 5-7.630), no claim or case under the jurisdiction of the Natural Resources Section may be settled or dismissed without specific or delegated authority from the Assistant Attorney General. See JM 5-5.210.
[cited in JM 5-5.210; JM 5-8.600
5-7.620 - Transmittal of Compromise Offer to Natural Resources Section—Recommendations With Respect to Acceptance
Except with respect to direct referral cases , any offer to settle or dismiss an action shall be transmitted to the Chief of the Natural Resources Section for referral to the Assistant Attorney General or for such other action as may be directed by regulation. Such offers should be accompanied by the written comments and recommendation of the referring agency and the United States Attorney. In emergency situations, such as with settlement offers received during trial, settlement offers dealing exclusively with monetary damages or penalties may be communicated to the Chief of the Natural Resources Section by telephone.
The recommendation should be guided by the principles that compromise offers cannot be accepted unless (a) there is doubt as to whether a more favorable judgment can be secured and collected or (b) because the probable cost of collection exceeds the difference between the amount offered and the amount recoverable.
5-7.630 - Authority of United States Attorneys to Settle or Dismiss Direct Referral Cases
The authority of United States Attorneys to settle or dismiss direct referral cases under the supervision of the Natural Resources Section is set forth in JM 5-5.230.
[cited in JM 5-7.600]
[Updated April 2018]