Professional Documents
Culture Documents
U.S. Department of Justice
U.S. Department of Justice
Department of Justice
FY 2008
PERFORMANCE BUDGET
CONGRESSIONAL SUBMISSION
Table of Contents
Page No.
I. Overview................................................................................................................1
V. Exhibits
A. Organizational Chart............................................................................................
B. Summary of Requirements ..................................................................................
C. Program Increases by Decision Unit....................................................................
D. Resources by DOJ Strategic Goal/Objective.......................................................
E. Justification for Base Adjustments.......................................................................
F. Crosswalk of 2006 Availability............................................................................
G. Crosswalk of 2007 Availability............................................................................
H. Summary of Reimbursable Resources.................................................................
I. Detail of Permanent Positions by Category.........................................................
J. Financial Analysis of Program Increase..............................................................
K. Summary of Requirements by Grade...................................................................
L. Summary of Requirements by Object Class....................................................
M. Status of Congressionally Requested Studies, Reports, and Evaluations......NA
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I. Overview of the Environment & Natural Resources Division
A. Introduction:
Environment and Natural Resources Division (ENRD) Mission: ENRD’s mandate is to enforce
civil and criminal environmental laws and programs protecting the health and environment of the
United States and to defend suits challenging those laws and programs. To accomplish this
mission in FY 2008 the Division is requesting a total of $101,396,000, including 453 General
Legal Activities (GLA) funded positions, and 499 Full-Time Equivalents (FTE). ENRD seeks a
total enhancement of $3,951,000, which includes funding for 17 positions, (10 attorneys), and 9
FTE, and $2,580,000 for automated litigation support.
The additional resources requested in ENRD’s FY 2008 Budget are needed to defend the United
States effectively in the “Tribal Trust” cases, a series of multi-billion-dollar lawsuits alleging the
United States has breached its trust responsibilities to Indian Tribes by failing to provide “full
and complete” historical accountings of tribal trust funds and non-monetary trust resources,
failing to properly administer tribal accounts that receive revenues from economic activity on
Tribal lands, and failing to manage properly tribal non-monetary trust resources, such as timber,
gas, oil, and other minerals. The United States has been sued in approximately 104 cases filed
by more than 80 Tribes in various United States District Courts and in the United States Court of
Federal Claims. Two of the cases feature requests to certify classes of over 250 Tribal plaintiffs.
If such requests are granted, the United States will have been sued by more than 300 Tribes. In
the 104 presently filed cases, the Tribes claim that they are owed damages exceeding $220
billion. Many of the currently filed cases are moving into the more demanding stages of
litigation (formal discovery, depositions, trial) or alternative dispute resolution (ADR) processes,
presenting new challenges which require additional resources that ENRD does not currently
have.
More details appear on page 6, Summary of Program Changes Section, and page 29, Program
Increases by Item Section, contained in this submission.
The Environment and Natural Resources Division was created on November 16, 1909, when Attorney
General George Wickersham signed a two-page order creating “The Public Lands Division” of the
U.S. Department of Justice. He assigned all cases concerning “enforcement of the Public Land
Law,” including Indian rights cases, to the new Division, and transferred a staff of nine -- six
attorneys and three stenographers -- to carry out those responsibilities. As the nation grew and
developed, so did the responsibilities of the Division, which was subsequently renamed three times.
In 1933, the Division was called the “Lands Division;” in 1965 the Division’s name was changed to
the “Land and Natural Resources Division;” and in 1990 the Division acquired its current name, the
“Environment and Natural Resources Division.”
B. Issues, Outcomes, and Strategies:
As the Nation's chief environmental litigator, ENRD supports the Justice Department’s Strategic
Goal Two: Enforce Federal Laws and Represent the Rights and Interests of the American
People, and Strategic Objective 2.5: Enforce federal statutes, uphold the rule of law, and
vigorously represent the interests of the United States in all matters for which the Department
has jurisdiction.
The Division initiates and pursues legal action to enforce federal pollution abatement laws and
obtain compliance with environmental protection and conservation statutes. ENRD also
represents the United States in all matters concerning protection, use, and development of the
nation's natural resources and public lands. The Division defends suits challenging all of the
foregoing laws, and fulfills the federal government’s responsibility to litigate on behalf of Indian
tribes and individual Indians. ENRD’s legal successes protect the federal fisc, reduce harmful
discharges into the air, water, and land, enable clean-up of contaminated waste sites, and ensure
proper disposal of solid and hazardous waste.
In defensive litigation, ENRD represents the United States in challenges to federal environmental
and conservation programs and all matters concerning the protection, use, and development of
the Nation's public lands and natural resources. ENRD faces a growing workload in a wide
variety of natural resource areas, including litigation over water quality and watersheds, the
management of public lands and natural resources, endangered species and sensitive habitats,
and land acquisition and exchanges. The Division is increasingly called upon to defend
Department of Defense training and operations necessary to military readiness and national
defense.
Additionally, as referenced throughout our FY 2008 Budget, ENRD continues to defend the
federal government in lawsuits alleging the United States has breached its trust responsibilities to
Indian Tribes by failing to provide “full and complete” historical accountings of tribal trust funds
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and non-monetary trust resources, failing to administer properly tribal accounts that receive
revenues from economic activity on Tribal lands, and failing to manage properly tribal non-
monetary trust resources. As a result of a statute of limitations which expired December 31,
2006, ENRD has recently received a number of new case filings. Approximately 86 of the 104
current cases were filed after November 2005 (some 72 cases were filed in the last week of
December 2006 alone). Two of the cases feature requests to certify classes of over 250 Tribal
plaintiffs. If such requests are granted, the United States will have been sued by more than 300
Tribes. To date, we have settled two Tribal Trust cases. ENRD is engaged in formal alternative
dispute resolution (ADR) processes or informal settlement discussions with the Tribes in 13
other cases. ENRD is actively litigating approximately twenty of the Tribal Trust cases; and we
are only beginning to review the claims and understand the issues involved in the 72 additional
cases which were filed the last week in December 2006 (before the expiration of the statute of
limitation requiring the filing of such cases). For these Tribal Trust cases, regardless of litigation
posture, the Division is obligated to identify, locate, review, scan, manage, and produce
approximately 150 million pages of documents relevant to Tribal Trust fund accounts, resources,
and assets. Consequently, we expect the Tribal Trust litigation to continue indefinitely.
The Division is one single Decision Unit. Its operations include both criminal and civil litigating
activities directly related to the strategic goals and objectives of the Department of Justice. The
methodology used to allocate expenses is based on the percentage of hours worked on criminal
and civil cases. These percentages are then used to allocate the expenses of the Division into the
two areas of criminal and civil litigating activities. These two areas of execution correlate
directly to Strategic Objective 2.5 under the Departmental Strategic Goal Two: Enforce Federal
Laws and Represent the Rights and Interests of the American People.
The Environment and Natural Resources Division litigated the case involving the largest fine ever
obtained by the federal government, environmental or otherwise. That case was the suit brought
against Exxon following the Exxon Valdez oil spill off the coast of Alaska in 1989, and the fine was
$1.1 billion. On March 24, 1989, the Exxon Valdez tanker hit Prince William Sound's Bligh Reef and
spilled an estimated 11 to 30 million U.S. gallons of crude oil into the sea. As a result of the spill,
thousands of animals perished immediately, including and estimated 250,000 sea birds, 2,800 sea
otters, 300 harbor seals, 250 bald eagles, 22 orcas, and millions of salmon and herring eggs. The
disaster prompted the U.S. Congress to pass the Oil Pollution Act in 1990 to address issues associated
with preventing, responding to, and paying for oil pollution.
D. Performance Challenges:
External Challenges
The Division has limited control over the filing of defensive cases, which make up the majority
of our workload. Court schedules and deadlines drive the pace of work and attorney time
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devoted to these cases. ENRD’s defensive caseload is expected to increase in FY 2008 as a
result of numerous factors.
ENRD expects a number of challenges to the simplified energy development and
permitting provisions of the 2005 Energy Policy Act. Based on ENRD’s past experience
– in the 1970s and 1980s, the Interior Department conducted offshore oil and gas lease
sales in nearly all coastal regions of the continental U.S. and in Alaska – we realize that
sizeable, energized leasing programs result in sizeable increases in case-work.
The Division’s defensive caseload involving the Tribal Trust litigation is also expected to
increase substantially, with the filing of 72 new cases during the last week of December
2006. Currently, ENRD has 104 filed Tribal Trust cases on its docket.
Additionally, beginning in FY 2007, Indian and other federal water rights adjudications
currently stayed for settlement negotiations are expected to resume.
The Division also will be responsible for handling cases that arise from the Administration’s
focus in other environment arenas, such as white collar environmental crimes. Prosecution of
white collar crimes and corporate fraud is one of the Attorney General’s six stated priorities; and
casework involving the prosecution of corporations and corporate executives may impose a
greater-than-expected workload demand on the Environment Division in FY 2008 and beyond.
ENRD has realized a number of legal victories in the area of white collar environmental crimes
in FY 2005 and 2006 (described in the Accomplishments section of this Performance Budget),
and we do not foresee any retreat in investigative and litigative activity in the immediate future.
Although we expect to be faced with an increased workload in the area of white collar criminal
litigation, we are not seeking a program enhancement in this area for FY 2008 because we
believe offsetting resource demands will allow us to accommodate prospective needs from our
base.
Internal Challenges
ENRD’s overwhelming internal challenge is to ensure sufficient attorney FTEs and dollars to
carry out the increasing demands of our defensive workload. The $3,951,000 requested in FY
2008 for the Tribal Trust program area addresses this challenge. However, ENRD will continue
to address these challenges by balancing available personnel and resources against workload
demands.
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Another challenge involves maintaining adequate information technology resources for our
workforce. Like other litigating components, ENRD must provide computer resources for our
attorneys which meet the changing, increasingly technological, demands of the legal industry.
With the introduction of new technologies and new requirements – such as e-filing, on-line
document repositories, electronic trials, extranet docketing systems, and the newly imposed
(December 2006) “electronic discovery” amendments to the Federal Rules of Civil Procedure –
we need to continually provide our workforce with the necessary computer hardware and
systems to accommodate these business process challenges.
We have identified a number of software and system challenges which will confront ENRD in
FY 2008. For example, implementation of the Department’s Litigation Case Management
System (LCMS) will be an expensive and time-consuming effort in the upcoming fiscal years.
ENRD predicts that it may spend up to $450,000 in base resources in FY 2008 to implement this
required system. The Division will complete its business process assessment and common data
model planning by FY 2007. In FY 2008, we will begin mapping data, prioritizing reports,
building conversion tools, migrating data, and cleaning up conversion/migration discrepancies.
This sizeable endeavor will require the effort and attention of existing government employees as
well as the specialized expertise and supplemental labor of industry consultants and/or contractor
resources.
With the requested resources for Tribal Trust in FY 2008, ENRD believes it can accommodate its
foreseeable internal and external challenges. Without additional resources, the Division will be
poorly positioned to defend federal financial interests in the Tribal Trust litigation as well as in
other important program areas.
The Environment and Natural Resources Division, which is organized into nine sections, has offices
and/or personnel located in Washington, D.C., Anchorage, Denver, Sacramento, San Francisco,
Seattle, Boston, Albuquerque, Boise, Missoula, MT, Concord, NH, Newton, MA, and Sequim, WA.
With a staff of nearly 700 federal employees, ENRD has more than 5,700 active cases, and has
represented virtually every federal agency in courts all over the United States and its territories and
possessions.
During FY 2005, the Division was assessed through the Office of Management and Budget’s
(OMB) Program Assessment Rating Tool (PART) along with five other litigating components
(Antitrust, Civil Division, Criminal Division, Civil Rights Division, and Tax Division),
collectively named the General Legal Activities (GLA) Program. At the end of the assessment,
the GLA Program received the highest rating of “Effective.” In FY 2006, the Program initiated
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follow-up actions focusing on continual improvement of business practices. More details appear
on page 38, Performance, Resources, and Strategies Section, contained in this submission.
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II. Summary of Program Changes
Tribal Trust
The Division requests additional resources to defend 1the United States adequately against
claims that the Government has failed to provide a “full and complete” historical accounting of
trust funds that it collected, managed, and disbursed, and of the trust resources that it
administered, on behalf of the Tribes, and that the Government has mismanaged the Tribes’ trust
funds and non-monetary trust resources, such as timber, gas, oil, and other minerals. Litigation
efforts for this initiative are directly linked with the Department’s Strategic Goal Two, Objective
2.5: Enforce federal statutes, uphold the rule of law, and vigorously represent the interests of the
United States in all matters for which the Department has jurisdiction. Therefore, the Division
requests an increase of $3,951,000 as indicated below:
The Tribal Trust cases are factually and legally complicated cases and, accordingly, have
required substantial resources over the past several years. We expect case-relevant events in FY
2008 to be highly demanding, especially as these cases will be more mature and active. As a
result of a statute of limitations which expired December 31, 2006, ENRD has recently received
a number of new case filings. Approximately 86 of the 104 current cases were filed after
November 2005 (some 72 cases were filed in the last week of December 2006 alone). Two of
the cases feature requests to certify classes of over 250 Tribal plaintiffs. If such requests are
granted, the United States will have been sued by more than 300 Tribes. To date, we have settled
two Tribal Trust cases. ENRD is engaged in formal alternative dispute resolution (ADR)
processes or informal settlement discussions with the Tribes in 13 other cases. ENRD is actively
litigating approximately twenty of the Tribal Trust cases; and we are only beginning to review
the claims and understand the issues involved in the 72 additional cases which were filed the last
week in December 2006. It is not unreasonable to expect virtually all of the filed Tribal Trust
cases to be in full-blown litigation by FY 2008. Among other things, the Division is obligated to
identify, locate, review, scan, manage, and produce potentially hundreds of million pages of
documents relevant to Tribal Trust fund accounts, resources, and assets in the Tribal trust
litigation, regardless of the litigation posture or context.
ENRD expects that its Tribal Trust-related workload will, at a minimum, double between now
and FY 2008. To accommodate this increased caseload, ENRD requests 10 attorneys, five
paralegals, and two support staff. We believe this mix of staffing will most efficiently address
both the volume and the nature of the pending workload.
Additional facts and information regarding the Tribal Trust Initiative are included on page 29 in
the Program Increases by Item Section contained in this submission.
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E. Summary of Requirements
1. Program Description
1As stated in the Department of Justice Strategic Plan, ENRD works to:
• Pursue cases against those who violate laws that protect public health, the environment, and
natural resources;
• Defend U.S. interests against suits challenging statutes and agency actions;
• Develop constructive partnerships with other federal agencies, state and local governments,
and interested parties to maximize environmental compliance and stewardship of natural
resources;
• Act in accordance with United States trust responsibilities to Indian tribes and individual
Indians in litigation involving the interests of Indians.
The Division focuses on both civil and criminal litigation regarding the defense and enforcement
of environmental laws and regulations. The Division serves as the nation’s environmental
litigator and represents many federal agencies in environmental litigation (e.g., the
Environmental Protection Agency, Department of Agriculture, Department of the Interior,
Department of Defense, and Department of Homeland Security.)
As the nation’s chief environmental litigator, ENRD strives to obtain compliance with
environmental and conservation statutes. To this end, we seek to obtain redress of past violations
that harmed the environment, establish credible deterrence against future violations of these
laws, recoup federal funds spent to abate environmental contamination, and obtain money to
restore or replace natural resources damaged through oil spills or the release of other hazardous
substances. The Division ensures illegal emissions are eliminated, leaks and hazardous wastes
are cleaned up, and drinking water is safe. Our actions, in conjunction with the work of our
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client agencies, enhance the quality of the environment in the United States and the health and
safety of its citizens.
Civil litigating activities include cases where ENRD defends the United States in a broad range
of environmental litigation and enforces the nation’s environmental laws. The majority of the
Division’s cases are defensive or non-discretionary in nature. They include claims alleging
noncompliance with federal, state and local pollution control and natural resource laws. Civil
litigating activities also involve the defense and enforcement of environmental statutes such as
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the
Clean Air Act (CAA), the Clean Water Act (CWA), the National Environmental Policy Act
(NEPA), and the Endangered Species Act (ESA).
The Division defends Fifth Amendment taking claims brought against the
United States alleging that federal actions have resulted in the taking of
private property without payment of just compensation, thereby requiring
the United States to strike a balance between the interests of property
owners, the needs of society, and the public fisc. ENRD also prosecutes
eminent domain cases to acquire land for congressionally authorized
purposes ranging from national defense to conservation and preservation.
Furthermore, the Division assists in fulfillment of United States trust
responsibilities to Indian Tribes. ENRD is heavily involved in defending
lawsuits alleging the United States has breached trust responsibilities to
Tribes by mismanaging Tribal natural resources and failing to properly
administer accounts that receive revenues from economic activity on Tribal
lands. The effectiveness of our defensive litigation is measured by percent
of cases successfully resolved and savings to the federal fisc. These results
can be seen in the Performance and Resources Table contained in this
submission.
Criminal litigating activities focus on identifying and prosecuting violators of laws protecting
wildlife, the environment, and public health. These cases involve issues such as fraud in the
environmental testing industry, smuggling of protected species, exploitation and abuse of marine
resources through illegal commercial fishing, and related criminal activity. ENRD enforces
criminal statutes designed to punish those who pollute the nation’s air and water; illegally store,
transport and dispose of hazardous wastes; illegally transport hazardous materials; unlawfully
deal in ozone-depleting substances; and lie to officials to cover up illegal conduct. The
effectiveness of criminal litigation is measured by the percentage of cases successfully resolved.
These results can also be seen in the Performance and Resources Table contained in this
submission.
One of the Division’s largest and most resource-intensive matters involves enforcement of the Clean
Air Act’s (CAA) New Source Review (NSR) provisions against the nation’s coal-fired Power Plants. As
of December 2006, ENRD has entered into eleven settlements to address NSR violations at coal-fired
power plants. The combined effect of the settlements achieved will reduce emissions of harmful
pollutants by more than 975,000 tons each year through the installation and operation of over $5.6
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billion worth of pollution controls. As a result of ENRD’s enforcement efforts since FY 2005,
polluters of all types will spend nearly $15 billion in corrective measures to protect the Nation’s
environment and the American people’s health and welfare.
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ACCOMPLISHMENTS
In FY 2006, the Division successfully litigated to judgment 691 cases while working on a total of
5,745 cases and matters. The estimated value of federal injunctive relief (i.e., clean-up work and
pollution prevention actions by private parties) as a result of cases litigated by ENRD was $4.15
billion. In addition, as a result of ENRD’s affirmative civil and criminal enforcement efforts, the
Division has imposed $368 million in civil penalties, cost recoveries, criminal fines and
restitutions in FY 2006. ENRD achieved a favorable outcome in 95 percent of cases resolved.
Civil Cases
The Division continued its string of victories in defending the federal government against
challenges to projects designed to restore public forest lands, improve wildlife habitat, and
recover the value of damaged timber on federal forest lands – projects which implement
President Bush’s Healthy Forest Initiative. Included in these victories are cases challenging the
Biscuit Fire Recovery Project at the Siskiyou National Forest in southwestern Oregon, the largest
such recovery project in the nation. In the massive Biscuit fire, the Forest Service responded to a
2002 wildfire that burned millions of trees on nearly 50,000 acres of ecologically-rich land. The
Biscuit Project involved the salvage harvesting of large trees in the area of the Northwest Forest
Plan, including within the Late Successional Reserves established by the Plan to protect the
remnant old growth ecosystem, the sole remaining such system in the lower 48 states. The
Project engendered six separate lawsuits brought by environmental groups and industry groups
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dissatisfied with the alternative chosen by the Forest Service. The Division successfully defeated
preliminary injunctions seeking to halt the salvage harvesting, and later received separate
judgments on the merits upholding the Project in all respects. Similarly, in the Snake River
Basin Water Rights Adjudication, which covers over 87% of the State of Idaho, ENRD won a
decree of water rights on behalf of the Forest Service preserving water supplies for firefighting
and other vital activities on the National Forests. These successes have enabled the government
to restore damaged forest areas, provide millions of board feet of salvaged timber to the public,
create jobs to the dependent economic communities, and collectively represent a signal
achievement in accomplishing the goals of the President’s Healthy Forest Initiative.
As part of its Petroleum Refinery Initiative, ENRD reached a landmark Clean Air Act settlement
with ExxonMobil Corporation and ExxonMobil Oil Corporation. This comprehensive
enforcement action addressed all seven domestic petroleum refineries owned by ExxonMobil,
located in five separate states. The seven refineries represent approximately 11 percent of the
total refining capacity in the United States. Under the agreement, ExxonMobil will reduce
harmful air emissions of nitrogen oxide and sulfur dioxide by more than 53,000 tons, at a cost of
approximately $537 million, as well as upgrade its leak detection and repair practices.
Additionally, the company will pay a $7.7 million civil penalty, and spend $6.7 million on
supplemental environmental projects (SEPs) in communities around the refineries. The
ExxonMobil settlement is the 17th in a joint DOJ-EPA initiative to reduce pollution in domestic
petroleum refineries nationwide. With the entry of the settlement decree, more than 75% of the
nation’s domestic refining capacity is now under federally enforceable orders to come into
compliance with the Clean Air Act.
The United States won a major Clean Water Act victory against the Washington Suburban
Sanitation Commission (WSSC), in an enforcement action brought to reduce or eliminate
sanitary sewer overflows (SSOs) that have been occurring in the WSSC sewage collection
system. WSSC is the sewerage authority for Montgomery County and Prince George’s County,
Maryland. Under the terms of the consent decree, which is anticipated to lead to more than $200
million in sewer system improvements over 14 years, WSSC will undertake injunctive measures
to address the alleged violations. Such measures include comprehensive inspection,
rehabilitation, and repair requirements and changes in the operation and maintenance of its
collection system. The settlement also requires WSSC to perform supplemental environmental
projects, valued at $4.4 million, that will prevent or reduce chronic sewage overflows to regional
waterways, including the Chesapeake Bay, and the Anacostia, Patapsco, Patuxent, and Potomac
Rivers. Additionally, under the terms of the consent decree, WSSC is required to pay a $1.1
million civil penalty, divided equally between the United States and Maryland. Five citizens
groups intervened in this action and joined the consent decree.
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• United States v. General Electric Co.
The Division continues to vigorously enforce Superfund laws under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). For example, the U.S.
recently lodged a consent decree with General Electric (GE), requiring the company to perform a
$100 million dollar dredging project to remove PCB-contaminated sediments from the Upper
Hudson River, as well as pay up to $78 million in EPA’s past and future response costs related to
the project. For approximately 30 years, ending in the 1970’s, GE discharged large quantities of
PCBs into the river from two major manufacturing facilities in Hudson Falls and Fort Edwards,
New York. The contaminants posed environmental and health threats to river wildlife and people
who eat fish from the river. The GE settlement decree involves two phases of remedial action –
the initial dredging, which will culminate in a comprehensive evaluation in order to assure the
process was completed safely and effectively, followed by an optional (pending results of Phase
1 dredging) $400 million subsequent clean-up.
Through the use of alternative dispute resolution (ADR), and with the assistance of a court-
approved mediator, the United States was able to favorably resolve a CERCLA claim by Kerr-
McGee Corporation (now Tronox, LLC) seeking to force the United States to pay approximately
70 percent of the cost of cleaning up contamination in groundwater at Kerr-McGee’s former
perchlorate manufacturing facility in Henderson, Nevada. The U.S. Navy owned the ammonium
perchlorate plant for 10 years before Kerr-McGee Chemical purchased the site in 1962. The
company discontinued commercial production of ammonium perchlorate and began initial
remediation efforts after perchlorate was detected in a spring that discharges to the Las Vegas
Wash. Kerr-McGee spent over $120 million between 1998 and 2005 to clean up the perchlorate
contamination. The case was settled by entry of a consent decree requiring the United States to
pay a share of approximately 20–24% of Kerr-McGee’s cleanup costs.
1In an appellate matter, the Ninth Circuit affirmed a judgment of $54.5M in cleanup costs for a
Superfund removal action conducted by EPA to address widespread asbestos contamination in
Libby, Montana. Grace contended that EPA had improperly classified the cleanup as a “removal
action”, rather than classifying the work as a “remedial action”, which is subject to stricter
regulatory requirements. Grace also asserted that there was no basis for exceeding the generally
applicable cap of 12 months and $2 million for removal actions. The Ninth Circuit unanimously
affirmed the district court judgment awarding all past costs, and a declaratory judgment for
future costs. The Court also held that EPA had properly determined to exceed the general
statutory limits of 12 months and $2 million for removal actions, stating that “considering the
widespread and pervasive asbestos contamination and the potential for further migration of
asbestos fibers . . . the EPA’s decision to exceed the statutory cap was not arbitrary and
capricious.” The Court determined that the substantial expenditures and time required above the
general limits was required “given the urgency, magnitude, and long-standing nature of the
problem. In a separate but related matter, ENRD is prosecuting W.R. Grace for multiple criminal
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environmental violations in the Montana District Court. The criminal case against Grace is
scheduled to go to trial in September 2007.
ENRD has settled a number of major water rights adjudications over the past several months.
Perhaps the most comprehensive Indian water rights settlement involved the Gila River
Adjudication, which was largely resolved, in substance, in December 2004 when Congress
enacted the Arizona Water Settlements Act (“AWSA”). The AWSA “authorized, ratified, and
confirmed” the framework for the settlement of the water rights claims of the Gila River Indian
Community to the Gila River. After enactment of the AWSA, the Interior and Justice
Departments spent almost a year negotiating amendments to the Settlement Agreement, to ensure
that the Agreement did not conflict with the AWSA. In another matter, Lummi Nation v. State of
Washington, the Division forged an agreement among the State of Washington, the Lummi
Nation and numerous private water users, to resolve a lengthy and contentious lawsuit involving
the right to groundwater underlying the Lummi Peninsula in the State of Washington. The
agreement allocates to the Lummi Nation the vast majority of the groundwater, while protecting
the ability of non-Indians to draw from existing wells. The settlement in another water rights
case, Arizona v. California, concluded a 35-year-long original Supreme Court jurisdiction case
involving rights to water from the Colorado River. The settlement resolved the water rights
claims of the Quechan Indian Tribe and resolved any disagreement about the location of the
Tribe’s Reservation boundaries in Arizona.
• TOMAC v. Norton
1In a D.C. Circuit Court of Appeals case handled by ENRD, the circuit court affirmed the district
court’s grant of summary judgment upholding the Secretary of the Interior’s decision to take land
into trust for the Pokagon Band of Potowatami Indians. TOMAC, an anti-casino group, had
asserted that the Secretary violated NEPA by failing to prepare an environmental impact
statement (“EIS”) for the acquisition, that the Band does not qualify as a “restored” tribe within
the meaning of the Indian Gaming and Regulatory Act (“IGRA”), and that the Congressional Act
which restored recognition to the Pokagon Band violates the non-delegation doctrine. The D.C.
Circuit found that Interior had taken the required “hard look” at the potential impacts of the
Tribe’s planned casino and recreation complex in its Environmental Assessment (“EA”) and
supplement to the EA to satisfy NEPA requirements. The court also rejected TOMAC’s assertion
that the Band was not a restored Tribe within the meaning of IGRA. Finally, the Court rejected
TOMAC’s assertion that the Pokagon Act was an unconstitutional delegation of legislative
authority.
1In several cases, ENRD successfully defended the ESA through interagency consultation
regarding activities permitted by federal agencies. In City of Santa Clarita v. Department of
Interior the City of Santa Clarita challenged a Fish & Wildlife Service (FWS) biological opinion
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associated with a proposed sand and gravel mining project for the CEMEX Company to be
permitted by BLM on federal lands near Santa Clarita, California. The Court agreed with ENRD
that FWS correctly concluded that the mining operations, with mitigation, were not likely to
jeopardize the existence of the unarmored three-spine stickleback, a threatened fish, and
otherwise rejected plaintiff’s contention that FWS’ “no jeopardy opinion” and “incidental take”
statement were arbitrary. In EPIC v. USFWS & NOAA Fisheries, ENRD prevailed on a motion
to dismiss, and on plaintiffs’ motion for preliminary injunction, where plaintiffs sought to compel
FWS and NOAA to revoke an “incidental take” permit for Pacific Lumber’s timber program, or
to compel reinitiation of consultation. The Court agreed with us that plaintiff’s suit was in part
barred by Heckler v. Cheney (S.Ct. 1985) because, in essence, it sought to circumscribe agency
enforcement. The Court also agreed that recent oil spills added no new information which was
not already adequately considered in a recent biological opinion, that FWS had reasonably
assessed the species current status, and that the Court should defer to the expert federal agencies
in such matters.
It is not unusual for some ENRD litigation to span several decades. For many complex cases
involving Indian territorial rights or federal water rights, cases are expected to last for a decade or
more. One example of a long-standing open case in the Environment Division is U.S. v. Truckee
River General Electric Company. The Truckee River case was filed in March 1913, and remains open
today. This case, filed during the Woodrow Wilson administration, concerns the Orr Ditch and water
from the Truckee River and Lake Tahoe. The suit was brought by the U.S. Reclamation Service
(predecessor to the Bureau of Reclamation) to quantify and clarify (adjudicate) water rights of
upstream users in Nevada. Although there have been partial resolutions in the Truckee River
adjudication, it remains an open and active case on ENRD’s docket.
Criminal Cases
ENRD’s Vessel Pollution Initiative is an ongoing, concentrated effort to prevent ships from
illegally discharging pollutants into the oceans, coastal waters, and inland waterways. Over the
past year, the Division has won a number of successes resulting in criminal fines, mandated
community service projects, and probationary sanctions. In U.S. v. MSC Ship Management Ltd.,
the defendant – a Hong Kong-based container ship company – pled guilty to charges that it
engaged in conspiracy, obstruction of justice, destruction of evidence, false statements and
violations of the Act to Prevent Pollution from Ships (APPS). As a result, MSC Ship
Management paid $10.5 million in penalties, the largest fine in which a single vessel has been
charged with deliberate pollution. An MSC ship engineer was sentenced to serve a one-year
term of probation. In U.S. v. Wallenium Ship Management Ltd., a Singapore shipping company
pled guilty to conspiracy to violate APPS for failure to maintain an oil record book, making false
statements and writings, and obstructing a government proceeding. Under the plea agreement,
the company has agreed to pay a $5 million fine with an additional $1.5 million payment devoted
to community service projects. Wallenium will also serve a three-year term of probation and
implement an environmental compliance plan.
9
• McWane Cases
ENRD reported a number of successes over the past year involving protection of citizens from
criminal Clean Water Act violations. In U.S. v. Lucas, several individual defendants and two
companies were found guilty on 40 counts arising from their development of a large tract of
wetlands known as Big Hill Acres in southern Mississippi. They were further convicted of
conspiracy and mail fraud for selling home sites on this property to hundreds of families despite
numerous warnings from public health officials that the illegal septic systems they were
installing in saturated soil were likely to fail, and could cause contamination of the property and
the drinking water aquifer. The named defendant Lucas was sentenced to serve nine years in
prison, followed by three years supervised release, and to pay a $15,000 fine. Co-defendants
Robbie Wrigley and M.E. Thompson, Jr., were each sentenced to serve 87 months in prison,
followed by three years supervised release, and to pay a $15,000 fine. Big Hill Acres, Inc., was
ordered to pay a $4.8 million fine and sentenced to serve five years’ probation. Consolidated
Investments, Inc. was sentenced to serve five years’ probation and is required to pay a $500,000
criminal fine.
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• United States v. Dov Shellef dba Poly Systems, Inc., el al.
The Environment Division recorded a major victory in the prosecution of illegal sales of ozone-
depleting chemicals in the Dov Shellef/Poly Systems case. Dov Shellef, an individual doing
business as Poly System, Inc. and Polytuff USA, Inc., along with corporate executive William
Rubenstein, were sentenced after being convicted at trial of 87 counts for conspiring to defeat the
excise taxes on ozone-depleting chemicals, money laundering, wire fraud, and a variety of tax
violations. The defendants represented to manufacturers that they were purchasing CFC-113 for
export, inducing the manufacturers to sell it to them tax-free. The defendants then sold the
product tax-free in the domestic market without notifying the manufacturers or paying the excise
tax. Shellef was ordered to serve 70 months’ incarceration and Rubenstein was sentenced to 18
months’ imprisonment. Both individuals will be held jointly and severally liable for just under
$1.9 million in restitution for the taxes due on domestic sales of trichlorotrifluoroethane, the
ozone-depleting chemical commonly referred to as CFC-113, or Freon. This was the first
criminal case involving CFC-113.
ENRD continues to enforce laws protecting wildlife, and the Division has realized several
important successes in this area over the past year. In U.S. v. Beau Lee Lewis, the individual
defendant was convicted of six felony violations of conspiracy and smuggling statutes in a retrial
of charges connected with his importation of more than 300 protected reptiles and amphibians
into the U.S. in FedEx containers. In 1998, Lewis was indicted for trafficking in some of the
most rare and endangered reptiles in the world. The endangered species traded by Lewis and his
co-conspirators include the Komodo Monitor (also called the Komodo Dragon), the world’s
largest lizard, the Plowshare Tortoise, believed to be the rarest tortoise species, the Chinese
Alligator, the False Gavial, and the Radiated Tortoise. These animals can bring upwards of
$30,000 a piece on the black market. Lewis was convicted and sentenced to serve 23 months’
imprisonment, followed by three year’s supervised release, with special conditions related to
wildlife possession.
President William Howard Taft appointed the Division’s first AAG, Ernest Knaebel, in 1911. Mr.
Knaebel began his service to the Department of Justice as a U.S. Attorney in Colorado. Immediately
prior to assuming his AAG duties, Knaebel was a Special Assistant to the Attorney General. After his
tenure as AAG ended in 1916, Ernest Knaebel became the 11th Reporter of Decisions for the U.S.
Supreme Court. Mr. Knaebel was the longest-serving Reporter of Decisions, with his work spanning
four decades, from 1916 to 1944. The Reporter of Decisions of the United States Supreme Court is
the official charged with editing and publishing the Court's decisions both when announced and in
the bound volumes of the United States Reports.
11
2. Performance and Resources Table
DOJ Strategic Goal/Objective: Strategic Goal II - Enforce Federal Laws and Represent the Rights and Interests of the American People. Objectives 2.5
Current Services
FY 2006 FY 2006 FY 2007 Adjustments and FY 2008 FY 2008 Request
Program Change
WORKLOAD/RESOURCES 1/
# of Cases & Matters (Active & Closed) 5,878 5,745 5,707 43 5,750
DIVISION TOTAL
WORKLOAD
# of Cases Successfully Resolved/Success Rate 82% 658 95% 83% 83%
1. Number of cases (active & closed) 4,970 4,887 4,854 41 4,895
CIVIL
2. Number of matters (active & closed) 514 543 486 -1 485
3. Number of cases (active & closed) 365 291 341 3 344
CRIMINAL
4. Number of matters (active & closed) 28 24 26 0 26
FTE $000 FTE $000 FTE $000 FTE $000 FTE $000
DIVISION RESOURCES - Total Year Costs & FTE's (Reimbursable FTE are included, but
reimbursable costs are bracketed and not included in the total.) 493 $ 92,774 518 $ 92,440 490 $ 91,408 9 $ 9,988 499 $ 101,396
[184] [26,253] [125] [26,253] [184] [26,056] [184] [24,556]
Current Services
FY 2006 FY 2006 FY 2007 Adjustments and FY 2008 FY 2008 Request
Program Change
Program Activity PERFORMANCE/RESOURCES
CIVIL FTE $000 FTE $000 FTE $000 FTE $000 FTE $000
TOTAL COSTS & FTE 442 $ 82,463 467 $ 82,166 440 $ 81,841 9 $ 9,358 449 $ 91,200
OUTPUT 1/ Active Closed Active Closed Active Closed Active Closed Active Closed
1. Number of cases active/closed 2972 1998 3,079 1,808 3,079 1,775 41 3,120 1,775
2. Number of matters active/closed 306 208 259 284 259 227 -1 258 227
EFFICIENCY MEASURES
1. Total Dollar Value Awarded per $1 of Expenditures (Affirmative) $ 75 $ 75 $ 76 $ 77
2. Total Dollars Saved the Government per $1 of Expenditures (Defensive) $ 16 $ 14 $ 17 $ 18
OUTCOME* # Resolved Success Rate # Resolved Success Rate # Resolved Success Rate # Resolved Success Rate
1. Affirmative cases successfully resolved no estimate 85% 298 97% no estimate 85% no estimate no estimate no estimate 85%
2. Defensive cases successfully resolved no estimate 75% 295 93% no estimate 75% no estimate no estimate no estimate 75%
3. Penalties Awarded 2/ * Superfund 3/ Non-Superfund Superfund 3/ Non-Superfund Superfund 3/ Non-Superfund Superfund 3/ Non-Superfund
- Federal no estimate no estimate $ 1,736,200 $ 119,638,484 no estimate no estimate no estimate no estimate no estimate no estimate
- State no estimate no estimate 3,112,998 20,256,938 no estimate no estimate no estimate no estimate no estimate no estimate
4. Clean-up Costs Awarded 4/
- CERCLA Federal Cost Recovery 5/ no estimate no estimate 144,257,514 4,370,603 no estimate no estimate no estimate no estimate no estimate no estimate
- Federal Injunctive Relief no estimate no estimate 227,680,180 3,850,522,312 no estimate no estimate no estimate no estimate no estimate no estimate
- CERCLA State Cost Recovery no estimate no estimate 3,646,386 100,089 no estimate no estimate no estimate no estimate no estimate no estimate
- State Injunctive Relief no estimate no estimate 6,000,000 no estimate no estimate no estimate no estimate no estimate no estimate
5. Supplemental Environmental Projects (SEP's) 6/
- Value of Federal SEP's no estimate no estimate 2,401,750 54,451,803 no estimate no estimate no estimate no estimate no estimate no estimate
- Value of State SEP's no estimate no estimate - 7,089,585 no estimate no estimate no estimate no estimate no estimate no estimate
6. Costs Avoided (Saved the U.S. in Defense Cases) 7/ no estimate no estimate $ - $ 802,559,189 no estimate no estimate no estimate no estimate no estimate no estimate
12
Performance and Resources Table (Cont.)
Current Services
FY 2006 FY 2006 FY 2007 Adjustments and FY 2008 FY 2008 Request
Program Change
Program Activity PERFORMANCE/RESOURCES
CRIMINAL FTE $000 FTE $000 FTE $000 FTE $000 FTE $000
OUTPUT 1/ Active Closed Active Closed Active Closed Active Closed Active Closed
1. Number of cases active/closed 178 187 216 75 216 125 3 219 125
2. Number of matters active/closed 24 4 23 1 23 3 23 3
OUTCOME* # Resolved Success Rate # Resolved Success Rate # Resolved Success Rate # Resolved Success Rate
1. Number of criminal cases successfully resolved no estimate 85% 65 94% no estimate 90% no estimate no estimate no estimate 90%
2. Dollars Awarded Superfund 3/ Non-Superfund Superfund 3/ Non-Superfund Superfund 3/ Non-Superfund Superfund 3/ Non-Superfund
- Fines 8/ no estimate no estimate $ - $ 56,354,348 no estimate no estimate no estimate no estimate no estimate no estimate
- Restitution no estimate no estimate - 4,949,489 no estimate no estimate no estimate no estimate no estimate no estimate
- Supplemental Sentence 9/ no estimate no estimate $ - $ 9,102,000 no estimate no estimate no estimate no estimate no estimate no estimate
Data Collection & Storage: The majority of the performance data submitted by ENRD are generated from the Division's Case Management System (CMS).
Data Validation and Verification: The division has instituted a formal data quality assurance program to ensure a quarterly review of the Division's docket. The case systems data are monitored by the division to maintain accuracy.
Data Limitations: Timeliness of notification by the courts.
Data does not include United States Attorney (USA) exclusive cases
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Performance Measure Table
FY 1999 FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008
Actual Actual Actual Actual Actual Actual Actual Target Actual Target Target
EFFICIENCY Total dollar value awarded per $1 of expenditures
Measure (Affirmative) $58* $87 $171 $75 $75 $76 $77
EFFICIENCY Total dollars saved the government per $1 of
Measure expenditures (Defensive) $16* $15 $16 $14 $17 $18
OUTCOME
Measure Civil affirmative cases successfully resolved 97% 93% 93% 94% 97% 96% 95% 85% 97% 85% 85%
OUTCOME
Measure Civil defensive cases successfully resolved 94% 84% 92% 89% 91% 95% 92% 75% 93% 75% 75%
OUTCOME
Measure Criminal cases successfully resolved 86% 87% 85% 91% 96% 95% 90% 85% 94% 90% 90%
14
3. Performance, Resources, and Strategies
The Environment and Natural Resources Division contributes to the Department’s Strategic
Goal Two: Enforce Federal Laws and Represent the Rights and Interests of the American
People. The decision unit’s resources specifically address the Department’s Strategic
Objective 2.5: Enforce federal statutes, uphold the rule of law, and vigorously represent the
interests of the United States in all matters for which the Department has jurisdiction. The
Division focuses on both civil and criminal litigation within this strategic objective. An
explanation by litigating activity follows.
15
Performance Results
To date, FY 2007 has proven to be equally fruitful from a criminal perspective. Under ECS’s
Vessel Pollution Initiative, the Division secured an agreement to pay over $37 million from
Overseas Shipholding Group (OSG) after pleading guilty to 33 felony counts related to
deliberate vessel pollution from nine ships and false pollution log entries from three
additional ships. OSG is a U.S. corporation headquartered in New York and is one of the
largest publicly traded tanker companies in the world. ECS has also logged a plea agreement
with Sinclair Tulsa Refining Company, which plead guilty to two felony Clean Water Act
violations for deliberately manipulating wastewater discharges at its Tulsa refinery. In
conjunction with its plea, Sinclair will make a community service payment of $500,000
which will be paid into an environmental fund.
FY 2007/2008 Performance Plan: Considering our past performance, we have increased our
targets to 90 percent of cases successfully litigated in FY 2007 and FY 2008, respectively.
ENRD targets are set lower than the actual performance so that there is no incentive to ramp
up prosecutions or lawsuits against insignificant targets for “easy” wins solely to meet higher
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targets. Such an approach would do a disservice to the public by steering litigation away
from more complicated problems facing the country’s environment and natural resources.
The past 7 years of data demonstrates that our targets, set at achievable levels, have not
deterred high performance as shown in the actual successes.
Public Benefit: The Division continues to produce successful criminal prosecutions relating
to environmental statutes. These successes ensure compliance with the law and lead to
specific improvements in the quality of the environment of the United States, and the health
and safety of its citizens. Additionally, ENRD has had numerous successes in prosecuting
vessels for illegally disposing of hazardous materials into United States waterways. These
successes have improved the quality of our waterways and promoted compliance with proper
disposition of hazardous materials. Also, the Division has successfully prosecuted numerous
companies for violations of environmental laws which endangered their workers. Our
successes lead to safer workplaces and fewer lives lost to hazardous conditions.
Public Benefit: The Division continues to obtain criminal fines from violators, thereby
removing economic benefits of non-compliance and leveling the playing field for companies
that comply with environmental laws. Additionally, our prosecution efforts deter others from
committing crimes and promote adherence to environmental and natural resource laws and
regulations. These efforts result in the reduction of hazardous materials and wildlife
violations thereby improving the quality of the United States’ waterways, airways, land, and
wildlife resulting in improved public health and safety.
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B. Strategies to Accomplish Outcomes
The Division will continue efforts to obtain convictions and to deter environmental crimes
through initiatives focused on laboratory fraud, chlorofluorocarbon (CFC) smuggling, vessel
pollution, transportation of hazardous materials and worker safety. ENRD will also continue
to prosecute international trafficking of protected species of fish, wildlife, and plants with a
host of international treaty partners.
International trade in wildlife is second in size only to the illegal drug trade, and our criminal
prosecutors work directly on these cases, as well as assist United States Attorneys Offices
and share ENRD expertise nationwide with state and federal prosecutors and investigators.
We will focus on both interstate trafficking and poaching cases on federal lands, and seek to
ensure that wildlife conservation laws are applied uniformly and enforced across the country,
seeking consistency in the United States’ position in these criminal prosecutions and a
vigorous enforcement program that serves as an international role model.
ENRD has partnered with other federal agencies, such as EPA, to pursue litigation against
criminal violators of our nation’s environmental policies. Egregious offenders are being
brought to justice daily. The Division has worked collaboratively to identify violators who
pose a significant threat to public health. By prosecuting criminal violations of regulations,
ENRD is forcing compliance and discouraging continued disregard for public health.
The longest trial in U.S. history involving environmental crimes was litigated by the Environment and
Natural Resources Division from September 2005 through April 2006. The nearly seven-month long
jury trial involved New Jersey cast iron pipe manufacturer, Atlantic States Cast Iron Pipe Co. (a
subsidiary of McWane, Inc.), and five company officials who were charged with violating
environmental and worker safety laws. Five of the six defendants were found guilty of the charges,
which included the regular discharge of oil into the Delaware River, concealing serious worker
injuries from health and safety inspectors, and maintaining a dangerous workplace that contributed
to multiple severe injuries and the death of one employee at the plant.
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Civil Litigating Activities
Discussion: The Division enjoyed Data Collection and Storage: A majority of the performance data submitted by
numerous successes during FY 2006. ENRD is generated from the Division’s Case Management System (CMS).
ENRD’s continuing Clean Air Act Data Validation and Verification: The Division has instituted a formal data quality
enforcement efforts resulted in five consent assurance program to ensure a quarterly review of the Division’s docket. The
systems data is constantly being monitored by the Division to maintain accuracy.
decrees under ENRD’s Petroleum Refinery
Data Limitations: Timeliness of notification by the courts
Initiative. The five enforcement actions
concerned ExxonMobil Corp.,
ConocoPhillips Co., Valero Energy Corp.,
Sunoco Refinery, Inc., and Chalmette Refining LLC. These five settlements require the
installation of controls that will reduce air pollutant emissions by over 150,000 tons per year
at a cost of over $2 billion dollars to the companies. The companies will also pay over $20
million in civil penalties and perform environmental service projects valued at over nearly
19
$30 million. With these additional settlements, the Division will have addressed more than
80 refineries comprising approximately 76% of the nation’s total refining capacity.
ENRD’s Environmental Defense Section (EDS) has continued its vigorous defense of various
provisions in the Clean Water Act (CWA), and in FY 2006 obtained a number of favorable
resolutions in its assigned cases. For example, in Citizens Coal Council v. EPA, petitioners
challenged effluent limitations guidelines and new source performance standards for
subcategories within the coal mining industry. The Division successfully sought en banc
reversal from the Sixth Circuit Court of Appeals of a prior adverse panel decision in which
the court had held that EPA incorrectly applied statutory factors in settling effluent
limitations. The Sixth Circuit further upheld EPA’s use of best management practices in lieu
of numerical effluent limitations in its treatment of discharges from coal mines.
The first quarter or FY 2007 has been marked by notable civil litigation successes as well. In
December 2006, the United States District Court for the Southern District of Indiana entered
a consent decree resolving violations of the Clean Water Act by the City of Indianapolis. The
Consent Decree requires the City to undertake extensive work to reduce or eliminate illegal
discharges from its sanitary sewers and overflows from the portions of its sewer system
where storm water and sanitary sewage are combined. 1Under the consent decree, the City
will implement a Long Term Control Plan on a twenty-year schedule at an estimated cost of
$1.86 billion. In addition, the City will perform a pollution reduction supplemental
environmental project (SEP) valued at $2 million and pay a civil penalty of $1,177,800, of
which $588,900 will go to the United States and the other $588,000 will go to Indiana. The
injunctive relief provided under the settlement will ultimately reduce the volume of
Indianapolis’ combined discharges by over 90 percent, or an average of 7.2 billion gallons
per year out of its current average of 7.9 billion gallons per year.
20
environment and natural resources. The past 7 years of data demonstrates that our targets, set
at achievable levels, have not deterred the high performance as shown in the actual successes.
The successes delineated in the “Accomplishments” section of this document demonstrate the
Division’s effectiveness at defending the nation’s environmental laws. By receiving full base
funding in FY 2008, ENRD hopes to maintain our success rates while effectively defending
the United States. If ENRD cannot offer a strong defense, the Executive Branch’s ability to
enforce regulatory compliance or defend policy challenges may be seriously impaired. For
example, the Division’s efforts on behalf of Indian Tribes have been successful to date.
However, if ENRD is forced to fully litigate the growing number of cases with limited
resources, the resulting impact would be delays in resolution and unnecessary expenditures
against the federal coffers.
Public Benefit: The success of the Department ensures the correction of pollution control
deficiencies, reduction of harmful discharges into the air, water, and land, clean-up of
chemical releases, abandoned waste, and proper disposal of solid and hazardous waste. In
addition, the Department’s enforcement efforts help ensure military preparedness, safeguard
the quality of the environment in the United States, and protect the health and safety of its
citizens.
II. Performance Measure - Costs Avoided and $ Awarded in Civil Environmental Cases
[ENRD Only]
Discussion: In FY 2006, 1ENRD litigated to judgment several other large sewage cases in
various locations across the U.S. In January 2006, the District Court for the District of
Hawaii entered a consent decree resolving Clean Water Act violations resulting from
discharges along major roadways, at construction sites, and at three airports. The consent
decree requires the State of Hawaii to undertake comprehensive corrective measures – at an
estimated cost of $60 million – over the next five years, as well as pay a $1 million civil
penalty and perform $1 million in environmental community service projects. In June 2006,
the District Court of Idaho entered two consent decrees resolving stormwater violations
related to road building projects. Under the terms of the Idaho decrees, defendants will pay
nearly $900,000 in civil penalties and undertake various actions to better train their
employees. In August 2006, the District Court for the Northern District of Texas entered a
consent decree in U.S. v. City of Dallas, settling the City’s violations of the CWA by failing
to adequately staff and implement its storm water management program. The decree requires
the City to undertake comprehensive injunctive relief, pay a civil penalty of $800,000 and
spend $1.2 million on environmental projects.
21
Through the first quarter of FY 2007, ENRD has already realized a number of civil
environmental enforcement successes. In December 2006, the U.S. District Court for the
Western District of Michigan entered a consent decree resolving Clean Air Act claims against
CEMEX Corporation, St. Mary’s Cement, Inc., and St. Barbara Cement, Inc. relating to
particulate matter emissions at one of Michigan’s largest cement manufacturing facilities.
Under the proposed consent decree, current plant operators – St. Mary’s and St. Barbara –
will install a new baghouse costing approximately $11 million in order to eliminate the
violations and perform a major emissions reduction supplemental environmental project
valued at $1.45 million. Former operator CEMEX will pay a civil penalty of $1.4 million
under the consent decree.
2) Total Dollars Saved the Government per $1 Expenditures [Defensive / ENRD Only]
Discussion: The Division had an outstanding FY 2006 in its efforts to secure commitments
by polluters to take action to remedy their violations of the nation's environmental laws.
Actions taken by the Division in Federal courts resulted in over $4.1 billion in settlements
and court ordered injunctive relief. Additionally, the Division saved the government more
than $800 million in defensive litigation. 1These successes, and the Division’s enforcement
work generally, have produced significant gains for the public fisc, public health, and the
environment. The Division routinely saves the American taxpayer hundreds of millions of
dollars – many times the Division’s annual budget.
22
Public Benefit: The Division’s efforts to defend federal programs, ensure compliance with
environmental and natural resource statutes, win civil penalties, recoup federal funds spent to
abate environmental contamination, ensure military preparedness, and ensure the safety and
security of our water supply, demonstrate that the United States’ environmental laws and
regulations are being vigorously enforced. Polluters who violate these laws are not allowed
to gain an unfair economic advantage over law-abiding companies. The deterrent effect of
the Division’s work encourages voluntary compliance with the environmental and natural
resource laws, thereby improving the environment, the quality of our natural resources, and
the safety and health of United States citizens.
As our environment changes, so do the actions we take to preserve the health and life of
those residing within the borders of the United States. Environmental groups and other
interested parties challenge Administration policies every year. ENRD is responsible for
defending federal agencies carrying out Administration policies every day. The Division has
realized some remarkable successes to date. In an effort to continue our successful record of
litigation, the Division has sought new and creative ways to utilize our limited resources.
ENRD has adopted a policy of “porosity” whereby specialized attorneys are provided an
opportunity to work on cases outside of their expertise to gain perspective and depth. This
policy has resulted in more flexibility to shift workloads between attorneys when they
become overburdened. Although cross-training staff grows our workforce’s skills and
abilities, it does not address long-term caseload issues.
The Division works collaboratively with client agencies towards adjudications and
settlements. These alternative methods of resolution are less contentious and save the
government expenses associated with full-blown litigation. Water rights adjudications,
reclamations, and inverse takings cases are typically handled in settlement mode versus
litigation mode. Settlements have the best outcome, and reach the largest number of people.
In order to continue achieving successful settlements, ENRD must remain committed to
collaborative negotiations with all interested parties. If a policy shift occurs, ENRD will be
forced to take a more aggressive litigation stance, which would be costly without
demonstrating added value for the Federal Government.
The Division’s Environmental Enforcement Section is turning its attention to air toxic
pollutants, mineral processing plant violations of RCRA, and industry practices that result in
toxic emissions in violation of the Clean Air Act. EPA has been performing inspections of
industries previously protected under the Bevel Amendments, but no longer exempt from the
statutory requirements. To date, EPA has found 100 percent non-compliance in these
inspections. Numerous resulting case referrals are expected, with ENRD prosecuting as
many as our resources will allow.
23
ENRDetails -- Did You Know …
The Environment and Natural Resources obtained its largest-ever civil penalty in 2003 -- $34 million
-- through a settlement with Colonial Pipeline Company. The Clean Water Act charges against
Colonial alleged multiple violations totaling 1.45 million gallons of spilled oil from the company’s
5,500 mile pipeline in five states. Atlanta-based Colonial Pipeline is the largest-volume pipeline
transporter of refined petroleum products in the world, moving an average of 83 million gallons of
petroleum products each day through an underground pipeline that stretches from Port Arthur,
Texas, to Linden, N.J., passing through Louisiana, Mississippi, Alabama, Georgia, Tennessee, South
Carolina, North Carolina, Virginia, the District of Columbia, Maryland, and Pennsylvania. The
government maintained that pipeline corrosion, mechanical damage, and operator error in seven
spills resulted in the release of approximately 1.45 million gallons of oil and other petroleum
products into the environment, including numerous rivers, streams, and wetlands. Oil spills from the
pipeline damaged a variety of aquatic systems. In one spill alone, more than 950,000 gallons of
diesel fuel spilled into the Reedy River in South Carolina, killing 35,000 fish and other species of
wildlife, and dispersing more than 34 miles downstream.
The Department will continue to focus on tribal land and water claims, as well as issues
pertaining to jurisdiction on Indian trust lands. Increased resources are necessary to execute a
solid defense in Tribal Trust cases where the Federal Government’s liability is in the hundreds of
billions of dollars. In addition, we will continue to resolve cases that establish jurisdiction for
law enforcement authorities over member and nonmember Indians, as well as non-Indians inside
reservation boundaries, which is essential for effective law enforcement. Furthermore, the
Department will litigate to address other issues regarding jurisdiction; to establish and protect
treaty-based hunting and fishing rights; and to deter and remediate pollution problems on Indian
lands. A detailed description of the Tribal Trust FY 2008 budget request is provided below.
24
Description of Program Increase
Strategic Goal(s) & Objective(s): Strategic Goal Two, Objective 2.5 - Enforce federal
statutes, uphold the rule of law, and vigorously represent
the interests of the United States in all matters for which
the Department has jurisdiction.
JUSTIFICATION
Description of Item
ENRD is requesting 17 positions (10 attorneys), 9 FTEs, and $3,951,000 to defend the United
States in the high-profile, high-stakes Indian Tribal Trust litigation.
The United States has been sued in approximately 104 cases filed by about 80 Tribes in various
United States District Courts and in the United States Court of Federal Claims. Two of the cases
feature requests to certify classes of over 250 Tribal plaintiffs. If such requests are granted, the
United States will have been sued by more than 300 Tribes.
The Government holds and manages approximately 56 million acres of land and resources in
trust for the benefit of individual Indians and Tribes. Of these 56 million acres, nearly 46 million
acres are held in trust specifically for Indian Tribes. On these lands, the Government manages
over 100,000 leases for individual Indians and Tribes. About $500 million per year in leasing,
use permits, land sale revenues, and interest income are collected in 1,450 tribal accounts for
some 300 Tribes. In total, the Government manages annually about $3 billion in Tribal funds.
Congress has delegated most of the trust functions to the Interior Department (principally, the
Bureau of Indian Affairs and the Office of the Special Trustee for American Indians) and several
custodial duties to the Treasury Department.
In the Tribal Trust cases, the Tribes allege that the Government should be ordered to prepare a
“full and complete historical accounting” of the Tribes’ trust fund accounts and non-monetary
trust resources and to pay damages for allegedly mismanaging the Tribes’ trust funds and non-
monetary trust resources. Specifically, the Tribes claim that the Government has failed to
25
provide an accounting of the monies that it has collected, managed, and disbursed, as well as the
non-monetary trust resources that it has administered, on the Tribes’ behalf. Additionally, the
Tribes claim that the Government has mismanaged the Tribes’ trust funds and non-monetary trust
resources, such as timber, oil, gas, and other minerals. In the 104 presently filed cases, the Tribes
claim that they are owed damages exceeding $220 billion.
The Tribal Trust cases are extraordinarily complex, both legally and factually. They involve
records of economic activity conducted on Tribal lands for over 100 years. Tribal lands have
been and continue to be used for a wide variety of revenue-producing activities, including
grazing, farming, oil and gas development, timber harvesting, hydroelectric power generation,
and minerals extraction. Similarly, Tribal funds have been and continue to be collected,
deposited, transferred, disbursed, and invested. These activities generate transactional
documentation, which must be identified, collected, imaged, coded, managed, reviewed, and
analyzed, in order to provide competent representation of the Government in litigation, formal
alternative dispute resolution (ADR) processes, or informal settlement discussions.
While about 86 of the 104 current cases were filed after November 2005 (some 72 cases were
filed in the last week of December 2006 alone), 25 cases were filed in or shortly after January,
2002, with several being filed in the 1979-2000 timeframe. Consequently, many of the Tribal
Trust cases have reached a level of procedural maturity so that they are in active formal
discovery or informal document and informational exchanges with the Tribes. In the Spring of
2006, the Osage case proceeded to trial, and several others are currently proceeding on a trial
track. Notwithstanding its best efforts at conservative resource management, ENRD struggles to
maintain adequate staff to take the Tribal Trust cases to trial or completion of the ADR or
informal settlement process. Also, ENRD lacks adequate funds to support the litigation, manage
the discovery process, or handle over 150 million pages of relevant documentation that are
associated with the currently filed Tribal Trust cases and that are located at disparate locations
across the country. As such, we have relied upon litigation support contractors to perform these
and other necessary tasks.
The Tribal Trust cases are counterparts to Cobell v. Kempthorne, which is a class-action lawsuit
brought on behalf of 300,000-500,000 individual Indians demanding “full and complete
historical accountings” of their individual Indian money (IIM) accounts. Of the 46 Tribal Trust
cases that have been brought in the United States District Courts, 36 of them have been assigned
to the same judge who is presiding over Cobell, because they were deemed factually and legally
similar. In Cobell, the previous presiding judge (Judge Lamberth) held the Secretaries of the
Interior and Treasury, as well as other Presidential appointees, in civil contempt in 1999, in part
because of agency failures to comply with court orders regarding discovery. That civil contempt
citation is precedent-setting and remains undisturbed to this day. Further, the Cobell plaintiffs
have alleged civil and criminal contempt charges against over 50 other government attorneys and
agency program staffers. Many of those charges arise from claims of document mismanagement.
Adequate and competent document management will be one of the primary responsibilities
addressed by this requested budget enhancement.
In July 2006, the United States Court of Appeals for the D.C. Circuit granted the Government’s
motion to reassign Cobell to a different judge because of Judge Lamberth’s demonstrated bias
26
against the Government. The Tribal Trust cases were reassigned as well because of their relation
to Cobell.
This reassignment of Cobell and the Tribal Trust cases from Judge Lamberth may decrease the
risk of contempt citations or sanctions for government attorneys and agency program staffers
working on those cases. It may also provide the Government with a more objective, impartial
court in which to try these matters.
At the same time, however, the Government will still face the same vulnerabilities and exposures
on substantive factual and legal issues, and the same document management burdens, as it did
before. Therefore, the reassignment does not change the litigation support needs – or their nature
and magnitude -- of the Tribal Trust cases.
Indeed, the litigation support needs in the Tribal Trust cases could increase. Until his
reassignment, Judge Lamberth had devoted most of his time and attention to Cobell and thus had
allowed the parties in the Tribal Trust cases to continue in informal settlement discussions
without significant oversight or requirements by the Court. The newly assigned Judge may be
less patient or tolerant with this process, and he may require the parties to conduct or complete
their informal settlement discussions on an expedited schedule or to proceed to litigation. This
concern is especially warranted in the 58 cases that are pending in the Court of Federal Claims
and the 10 cases that are pending in the District Courts in Oklahoma. Many of the judges on the
Court of Federal Claims have been and continue to be very aggressive in moving the cases on
their dockets and, therefore, not patient or tolerant about the parties’ or the Government’s bid for
more time to comply with court orders or to resolve matters informally or administratively.
Further, there is a chance that the Cobell litigation may be resolved through a legislative solution.
If that were to occur, the focus of the Judge newly assigned to Cobell would most likely turn to
the Tribal Trust cases. In other words, certain circumstances may lead to a more expedited track
for resolution of the Tribal Trust cases, which would bring the attendant need for sufficient staff
and resources to manage and enable adequate representation of the Government in these
document-intensive and complicated cases.
It is important that ENRD devote sufficient resources to the Tribal Trust cases to avoid
significant financial exposure and risk for the Government. Other consequences may include
huge and unnecessary monetary awards at taxpayer expense, significant negative publicity, and a
public loss of confidence in the Government in general, and, in particular, the Interior and
Treasury Departments.
The Tribal Trust cases will require many years of attorney time before disposition, regardless of
the manner (i.e., active litigation, ADR, or informal settlement), in part because of the volume of
documentation required to be examined in the course of performing an accounting and the
enormous amount of work required to defend resource mismanagement claims. For example, the
last case handled by ENRD under the 1946 Indian Claims Commission Act (ICCA)—which
permitted similar claims by Tribes to be brought and adjudicated administratively—has just
27
recently been concluded. So far, the Government has paid to various Tribes approximately $3.5
billion in judgments or settlements of the ICCA cases. This figure represents a fraction of the
amounts actually claimed by the Tribes. It was only through intensive litigation efforts that
ENRD was able to so limit the awards. At the height of the litigation, ENRD dedicated an entire
Section of attorneys and support staffers to defending the cases. ENRD’s litigation efforts
(which included document acquisition, management, and performance of accountings) were
supported by the Indian Trust Accounting Division (ITAD) (formerly a component of the General
Services Administration (GSA)), which, at one point, had over 100 employees, including staff
accountants. Because of the conclusion of the ICCA litigation, GSA disbanded ITAD and
shuttered its operations for good on September 30, 2006.
ENRD is currently staffing the 104 Tribal Trust cases with about 13 attorneys (full-time
equivalents) and no full-time paralegals or support staff (other than contractors). The Interior
Department does not have the ability, funding, or resources to prepare accountings to the Tribes
that have demanded one. Nor does it have the ability, funding, or resources to provide adequate
staff or litigation support to ENRD. In fact, Interior relies heavily on ENRD’s attorney and
litigation support contractor staff to perform many of the tasks and obligations that would
ordinarily be discharged by the agency. The Division receives minimal reimbursement funding
for this effort. The same applies to Treasury’s efforts. ITAD is no longer a relevant support
factor because it has been disbanded permanently.
ENRD’s FY 2008 Tribal Trust staffing request is reflective of the litigation challenges that we
expect to encounter as the cases become more mature and more active. The 72 new cases that
were filed before the expiration of a statute of limitations for filing certain Tribal trust claims
comprise one of the primary factors driving our need for additional staff. Currently, ENRD is
handling a docket of 104 active Tribal trust cases. Therefore, approximately 10 additional
attorneys will be required to accommodate the expanded docket and to compose memoranda,
correspondence, and motions, and to coordinate information and document exchanges between
the Tribes and the Government (particularly the Interior and Treasury Departments). Presuming
that a number of the currently filed cases engage in depositions, hearings, and trial, we believe
that additional attorney resources will be required to represent the Government’s interests
effectively in those venues. Our experience has taught us that the establishment of an active,
cooperative, and attentive working relationship with the Tribes and their counsel will allow us to
litigate these cases under preferential timetables and conditions. We need additional attorney
resources in order to cultivate and maintain these favorable terms.
With the increase in the expected number of case filings – combined with the increase in
maturity, complexity and general activity of the existing and prospective cases – ENRD
anticipates particularly stringent litigative demands in the area of document management. We
have already acquired and processed (scanned and coded) over 17 million pages of relevant
documents for the Tribal Trust cases. The current and future cases are likely to generate over
150 million pages of documents that must be identified, processed, and managed.
The original impetus for many of the Indian trust lawsuits – and the root cause of many of the
adverse rulings and orders in the Tribal Trust cases and Cobell (not to mention the civil contempt
citation and various court-imposed sanctions in Cobell) – was related in one way or another to
poor document management practices. We do not want to relive any of these clearly avoidable
28
mistakes. The requested number of paralegals (5) and support staff (2) will help assure that our
document production and retention responsibilities are met. This staff will not only manage
document inflows and outflows during the discovery phase of litigation, but they will also be
instrumental in gathering and organizing documents for depositions (i.e., witness binders) and in
preparation for trial (i.e., trial exhibits). In the Osage case, in which ENRD conducted a limited
trial in the Spring of 2006, the Division produced a total of 399 trial exhibit binders (seven sets
of 54 binders), which contained over 268,000 pages of exhibits. We had to detail paralegals and
support staff from other important division matters in order to assemble and prepare the trial
exhibits for Osage.
1ENRD’s litigation support needs for the Tribal Trust Cases can be generally classified into four
categories: (1) contractor labor, (2) document management, (3) trial support, and (4) “Support
Center” costs.
Contractor Labor. Current personnel resources within ENRD are not sufficient to
adequately staff the 104 Tribal Trust cases that have been filed so far. Even with the additional
Government staff requested, we will minimally be able to accommodate the increased future
activity in the existing cases, as well as the demands of the prospective cases. We will still
require the specialized supplemental litigation support services of our existing contractor staff, as
described below. For the past three years, the efforts of our attorneys have been augmented by
an indispensable, contractor-provided litigation support operation; and this contingent has been a
key contributing factor in our successes to date.
ENRD cannot rely on the Interior or Treasury Departments to provide any significant or
additional litigation support. Over the past four years, Interior has reimbursed ENRD for about
$1.6 million for document processing and production tasks that ENRD has undertaken for the
agency. Interior has refused to pay in full ENRD’s last request for supplemental reimbursement,
however, and it probably will deny future requests. Also, Interior is largely consumed with the
Cobell litigation and the continuing management of its Indian trust duties and responsibilities.
Additionally, it is overwhelmed by the number and scope of accountings that it is or will be
obligated to provide. Moreover, Interior is hampered by a lack of funding and resources itself,
including an insufficient number of staff attorneys assigned to the Tribal Trust cases and the loss
of Internet communication capability occasioned by Cobell. As a result, Interior is and has been
unable to focus significant attention or resources on the Tribal Trust cases. The reassignment of
Cobell to a new judge does not alter considerably the burdens confronting Interior from that
litigation. Further, the filing of 72 new Tribal Trust cases in December 2006, many of which are
in the Court of Federal Claims, exacerbates Interior’s situation. Similarly, Treasury has assigned
a single attorney to all 104 Tribal Trust cases. Also, Treasury relies upon ENRD for document
processing and production tasks, as well as creation and maintenance of litigation databases, for
which the agency reimburses the Division.
To compensate for these agency shortcomings, ENRD has retained an experienced litigation
support contractor to provide a team of competent legal and technical staffers who have been and
continue to be providing invaluable support to the ENRD attorneys working on the Tribal Trust
29
litigation. Based on its current projections (which include massive document acquisition,
imaging, coding, management, database administration, trial preparation, and staff support),
ENRD estimates that it will cost approximately $2.58 million in additional funds to maintain the
litigation support contract, at an adequate level of activity, for the duration of FY 2008.
Document Management. ENRD is the document manager for records relating to all of
the Tribal Trust cases. It has identified, located, scanned, coded, managed, and produced
documents to Interior, Treasury, and, in many instances, to the Tribes. As stated previously,
ENRD has acquired and processed over 17 million pages to date. This figure represents about
ten percent (or less) of the total volume of potentially relevant documents that has been identified
to date in the currently filed cases (over 150 million pages). ENRD foresees the possible need to
process up to or over (depending, in part, on the ultimate number of case filings and activity
thereof) 10 million pages (approximately 2.85 million documents) before the end of FY 2008. It
estimates that these documents will cost at least $750,000 to acquire (i.e., image at remote
locations, such as Reservations, and electronically process) and load (in searchable network
databases).
Trial Support. Based on the current case schedules, ENRD expects to take at least two
Tribal Trust cases to trial in FY 2008. Preparing and taking Tribal trust cases to trial imposes
additional litigation support work requirements and financial burdens above and beyond the costs
of providing and maintaining litigation support for all of the Tribal trust cases.
ENRD tried one Tribal Trust case in FY 2006. In Osage (one of three cases brought by this Tribe
and one of two in the Court of Federal Claims), the Tribe alleged that it suffered over $2.5 billion
in damages from the Government’s mismanagement of its trust fund accounts from 1853 to
present and from improper pricing of its oil and gas resources. The trial (the first of several
expected in the same case) involved the claims that the Government failed to collect the proper
royalty payments under four selected oil and gas leases for five specific periods of time and that
the Government failed to manage and invest the collected funds properly. The trial lasted two
weeks during the Spring of 2006. Among other things, ENRD had to establish and staff a full-
service, network-enabled, contractor-run trial support facility in close proximity to the
courthouse in Washington, D.C. The litigation support activities specifically geared toward
supporting the Osage trial cost $250,000 over and above on-going costs for other cases. The cost
to support two trials in FY 2008 would cost ENRD a minimum of $500,000.
Support Center. ENRD established an on-site Tribal Trust Support Center in June 2003
to provide immediate and daily access for its attorneys, as well as Interior and Treasury
components, to contractor support personnel, storage space, database administrators, and
technical support resources. The Support Center additionally maintains and updates network-
based computer databases; provides pre-trial, evidentiary hearing and trial support for cases;
assists Treasury and Interior in responding to and managing voluminous requests for production;
assists in coordinating and responding to the voluminous document and data requests of the
Government’s numerous expert consultants; and covers the setup and maintenance of a projected
Website to provide secure access by experts and agency program personnel (wherever possible)
to ENRD’s imaged document collections and databases. The total costs to maintain the high-
speed copiers and copier supplies, computer equipment, phones, office supplies, postage,
30
utilities, miscellaneous equipment, labor and other overhead is expected to total $1,330,000 for
FY 2008.
Conclusion
In order 1to defend effectively and represent adequately the interests of the United States and the
public fisc, among other things, in the current docket of 104 Tribal trust cases, ENRD requests
10 attorneys, five paralegals, and two support staff, as well as $2.58 million in litigation support
funding, over our FY 2007 base. The Tribal Trust staffing and litigation support needs are
urgent. Without major Divisional adjustments, we cannot continue to provide exemplary counsel
to these important, high-profile, and high financial exposure cases.
ENRD must devote sufficient resources to the handling and management of these legally and
factually complex Tribal Trust cases in order to protect the public fisc and in order to protect the
federal Government from unnecessary embarrassment and discomfiture. The resources
requested and explained above are the minimum required to allow ENRD to provide acceptable
representation in these cases.
ENRD must devote the majority of its appropriated resources to defensive work on behalf of
federal agencies. When making decisions as to which cases merit funding, the Division must
proceed, first and foremost, with such non-delegable, non-discretionary defensive litigation.
Additional resources for this initiative will assist the Division in responding to this increasingly
onerous defensive caseload. It will also, as a result, liberate other resources to work on matters
responsive to different aspects of Strategic Goal 2.5. For example, if ENRD is awarded
enhancements for Tribal Trust in this FY 2008 budget request, we are less likely to divert
resources from other program areas within our Division. As such, sufficient staff will be
available to affirmatively respond to Objective 2.5 of the Attorney General’s Strategic Plan, to
“enforce federal statutes, uphold the rule of law, and vigorously represent the interests of the
United States in all matters for which the Department has jurisdiction.”
31
For ENRD to meet the Department’s goal of defending all “challenges to federal environmental
and conservation programs and activities by representing the United States in all matters
concerning the protection, use, and development of the nation’s public lands and natural
resources” – while at the same time continuing to “enforce federal statutes, uphold the rule of
law, and vigorously represent the interests of the United States” – the Division needs additional
staff and funding. The personnel and litigation support requested under this Tribal Trust
initiative will provide ENRD with the resources needed to effectively address all aspects of DOJ
Strategic Objective 2.5.
32
Funding
Base Funding
Grand Total
33
C. Results of Program Assessment Rating Tool (PART)
During FY 2005, the Division was assessed through the Office of Management and Budget’s
(OMB) Program Assessment Rating Tool (PART) along with five other litigating components
(Antitrust, Civil Division, Criminal Division, Civil Rights Division, and Tax Division),
collectively named the General Legal Activities (GLA) Program. At the end of the
assessment, the GLA Program received the highest rating of “Effective.” Other findings
showed that:
• The Program effectively achieves its goal of resolving cases in favor of the government.
Favorable resolutions, in turn, punish and deter violations of the law; ensure the integrity
of federal laws and programs; and prevent the government from losing money through
unfavorable settlements or judgments.
• The Program collaborates effectively with its partners, notably the U.S. Attorneys
Offices. The two programs work closely to share expertise, make referrals, and designate
cases for prosecution, while minimizing any overlap of responsibilities.
• The Program exhibits good management practices. This includes strong financial
management, collecting and using performance information to make decisions, and
holding managers accountable for program performance.
• Establish a leadership training and mentoring program to continue improving the quality
of the program's management; and
• Work with the Department's Chief Information Officer to evaluate and purchase litigation
software that will improve productivity and efficiency.
The recent actions initiated in FY 2006, but not completed by year-end are as follows:
34
the GLAs are currently exploring other options to meet the PART follow-up action of
"Performing an independent evaluation of the GLAs."
• Each of the litigating components has developed a leadership training and/or mentoring
program, or is in the process of developing one. Over the course of FY 2006, the
litigating components trained 318 attorneys and 219 non-attorneys after conducting 9
training sessions. Additionally, 22 new employees are enrolled in a mentoring program.
• The litigating components are working jointly on a project led by the Justice
Management Division (JMD) to develop a case management system with the objective of
providing an efficient and effective means to track litigations handled by the Department.
Each component participated in the Source Selection Evaluation Board for the system.
Vendor demos were conducted and revised proposals were evaluated for vendors still in
the procurement process. The Board has completed its evaluation and recommendations
were sent to the selecting officials.
35
V. Exhibits
A. Organizational Chart
Exhibit A
B. Summary of Requirements
Summary of Requirements
Environment & Natural Resources Division
Salaries and Expenses
(Dollars in Thousands)
Perm.
Pos. FTE Amount
Technical Adjustments:
Restoration of 2007 Recission Against Balances 2,505
Total Technical Adjustments 2,505
Adjustments to Base
Increases:
2008 pay raise (3.0%) $ 1,467
2007 pay raise annualization (2.2%) 414
Changes in Compensable Days 492
Retirement 146
Health Insurance Premiums 210
Employees Compensation Fund 5
General Services Administration (GSA) Rent 752
DHS Security Charges 1
Security Investigations 45
Subtotal Increases $ 3,532
Program Change
Increase:
Tribal Trust Initiative 17 9 $ 3,951
Total Program Change 17 9 $ 3,951
* The Department of Justice 2008 budget request was built on a starting point that recognized progress in enacting the FY 2007 appropriation. The starting point used (referred to throughout this document as the "Estimate") is the average of the Senate Committee and House passed marks, less one percent,
unless noted otherwise.
Exhibit B
B. Summary of Requirements (Cont.)
Summary of Requirements
Environment & Natural Resources Division
Salaries and Expenses
(Dollars in Thousands)
*See Exhibit F for crosswalk for Enacted without rescission to Enacted with rescissions for FY 2006.
Exhibit B
C. Program Increases by Decision Unit
Initiative
Exhibit C
D. Resources by Department of Justice Strategic Goal and Objective
GRAND TOTAL 493 $ 92,774 490 $ 91,408 490 $ 97,445 9 $ 3,951 - $ - 499 $ 101,396
Exhibit D
E. Justification for Base Adjustments
Increases
2008 pay raise: This request provides for a proposed 3.0 percent pay raise to be effective in January of 2008. This increase includes locality pay adjustments as well as the
general pay raise. The amount requested, $1,467,000 represents the pay amounts for 3/4 of the fiscal year plus appropriate benefits ($1,033,648 for pay and $433,352 for
benefits).
Annualization of 2007 pay raise: This pay annualization represents first quarter amounts (October through December) of the 2007 pay increase of 2.2 percent included in the
2007 House passed bill for Treasury. The amount requested $414,000 represents the pay amounts for 1/4 of the fiscal year plus appropriate benefits ($293,940 for pay and
$120,060 for benefits).
Changes in Compensable Days: The increased costs of two more compensable days in FY 2008 compared to FY 2007 is calculated by dividing the FY
2007 estimated personnel compensation $53,603,000 and applicable benefits $10,271,000 by 260 compensable days. The cost increase of two
compensable days is $492,000.
Retirement: Agency retirement contributions increase as employees under CSRS retire and are replaced by FERS employees. Based on OPM government-
wide estimates, we project that the DOJ workforce will convert from CSRS to FERS at a rate of 3 percent per year. The requested increase of $146,000 is
necessary to meet our increased retirement obligations as a result of this conversion.
Health Insurance Premiums: Effective January 2006, this component's contribution to Federal employees' health insurance premiums increased by 6.1
percent. Applied against the 2007 estimate of $3,422,000 the additional amount required is $210,000.
Employees Compensation Fund: This $5,341 increase reflects payments to the Department of Labor for injury benefits paid on our behalf in the past year under the Federal
Employee Compensation Act. This estimate is based on the first quarter of prior year billing and current year estimates.
General Services Administration (GSA) Rent: GSA will continue to charge rental rates that approximate those charged to commercial tenants for equivalent space and related
services. The requested increase of $752,000 is required to meet our commitment to GSA.
DHS Security Charges: The Department of Homeland Security (DHS) will continue to charge Basic Security and Building Specific Security. The requested increase of
$1,000 is required to meet our commitment to DHS, and cost estimates were developed by DHS.
Security Investigations: The $45,000 increase reflects payments to the Office of Personnel Management for security reinvestigations of employees requiring security
clearances.
Exhibit E
F. Crosswalk of 2006 Availability
Decision Unit Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount
Civil Litigation 402 442 $83,124 (1,099) (304) 402 442 $81,721
Criminal Litigation 37 51 10,850 (101) (28) 37 51 10,721
TOTAL 439 493 $93,974 .... .... ($1,200) .... .... $0 .... .... ($332) .... .... $0 439 493 $92,442
* Enacted Rescissions. Funds rescinded as required by the Department of Justice Appropriations Act, 2006 (P.L. 109-108) and the Department of Defense Appropriations Act, 2006 (P.L. 109-148).
Reprogramming - Represents the second half of the implementation of the FY 2005 reprogramming of three Honors Program attorney positions and $332,000 to the US Attorneys’ Offices. The goal of the reprogramming is
to shift litigation functions and resources to the "front lines" to augment efforts to address national priorities, primarily the war on terrorism. The transfer is pursuant to P.L. 107-273, the 21st Century DOJ Appropriations
Authorization Act 116 STAT. 1766 (Section 103).
Exhibit F
G. Crosswalk of 2006 Availability
Decision Unit Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount Pos. FTE Amount
TOTAL 436 490 $91,408 .... .... $0 .... .... $0 .... .... $0 .... .... $0 436 490 $91,408
Exhibit G
H. Summary of Reimbursable Resources
Summary of ReimbursableResources
Environment & Natural Resources Division
Salaries and Expenses
(Dollars in Thousands)
Budgetary Resources: .... 184 $51,000 .... 184 $50,000 .... 184 $47,000 .... .... (3,000)
Total Obligations: .... 184 $51,000 .... 184 $50,000 .... 184 $47,000 .... .... (3,000)
Exhibit H
I. Detail of Permanent Positions by Category
Headquarters (Washington, D.C.) 390 167 387 167 .... 17 17 404 167
U.S. Field 49 17 49 17 .... 49 17
Foreign Field .... ....
Total 439 184 436 184 .... 17 .... 17 453 184
* Distribution of positions among categories will vary from previously submitted schedules. The distribution has been adjusted to reflect current operations,
however total appropriated and reimbursable positions have not changed.
Exhibit I
J. Financial Analysis of Program Increases
GS-14 10 1035
GS-9 5 257
GS-7 2 78
Exhibit J
K. Summary of Requirements by Grade
Exhibit K
L. Summary of Requirements by Object Class
Object Classes FTE Amount FTE Amount FTE Amount FTE Amount
11.1 Total FTE & personnel compensation 430 45,548 427 46,734 436 50,483 9 $ 3,749
11.3 Other than full-time permanent 63 6,918 63 7,885 63 7,885 .... ....
11.5 Total, Other personnel compensation .... 574 .... 921 .... 921 .... ....
Overtime .... .... .... .... .... .... .... ....
Other Compensation .... .... .... .... .... .... .... ....
11.8 Special personal services payments .... 356 .... 551 .... 551 .... ....
Exhibit L