February 2000 Volume 48 Number 1 - Justice Goldfrank ..... 7 Role of the Policy, Legislation, and...

Environmental Justice: An Overview of Legal Issues Sylvia F. Liu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Guidance to Client Agencies on Compiling the Administrative Record Joan Goldfrank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Role of the Policy, Legislation, and Special Litigation Section Pauline Milius and Tim Dowling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Affirmative ESA Civil Cases Seeking Injunctive Relief Samuel D. Rauch, III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

An Overview of Takings Jurisprudence Susan V. Cook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

General Stream Adjudications: Overview of the Process and Issues David W. Harder and K. Jack Haugrud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

RS 2477 Litigation: Statutory Background and Litigation Issues Claire E. Douthit and Margo D. Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Responsibilities and Activities of the Title Unit Lewis M. Baylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Timber Sale Litigation on Public Lands John Watts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

An Overview of Mineral Royalty Litigation Ann D. Navaro and Donna S. Fitzgerald . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Public Interest Value William J. Kollins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Appraisal Unit - Support Services James D. Eaton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

February 2000Volume 48Number 1

United StatesDepartment of Justice

Executive Office forUnited States Attorneys

Office of Legal EducationWashington, DC

20535

Mary H. MurguiaDirector

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A Letter From the DirectorAs the new director of the Executive Office for United States Attorneys, I am pleased to presentthis edition of the United States Attorneys' Bulletin. In the six months of my service as EOUSAdirector, I have met and spoken with many hardworking, highly-dedicated Assistant UnitedStates Attorneys who strive every day to carry out the mission of their offices in an effective yeteven-handed way. I have been tremendously impressed by the high quality and the widevariety of the litigation pursued in our 94 United States Attorneys' Offices. As EOUSAdirector, it is my job to insure that you have all the tools - both legal and technical - that youneed to do your job in the most productive way possible. I hope that you find the Bulletin to beone of the many resources that you can use to perform your important litigation tasks moreefficiently.

This edition, which examines natural resources, is the second in a two-part series focusing onenvironmental issues. As an Assistant United States Attorney, I appreciate the often complexand time-consuming litigation – both civil and criminal – that arises from environmentalissues and real-life events. Those who work in this area should be proud of their critical rolesin the protection and preservation of the environmental quality of our surroundings and are tobe congratulated on their successful efforts.

I wish to thank Assistant Attorney General Lois Schiffer and all of the contributors from theEnvironment and Natural Resources Division who have thoughtfully committed their insightsand guidance to paper, making this edition of the United States Attorneys' Bulletin a mostvaluable and informative resource.

Sincerely,

Mary H. Murguia

Environmental Justice: An Overviewof Legal IssuesSylvia F. LiuAttorney, Environment and Natural ResourcesDivisionPolicy, Legislation and Special LitigationSection

Environmental justice has gained nationwide attention in recent years. Environmental andcommunity groups opposed the site of a proposedpolyvinyl chloride (PVC) facility in St. JamesParish, Louisiana. Indian tribes protested aproposed low-level radioactive waste facility inWard Valley, California. Residents in Chester,Pennsylvania, filed a civil rights lawsuit to preventthe issuance of an environmental permit for a wasteprocessing facility. Communities in Los Angelesargued that a state air emissions trading programresults in toxic hot spots for some of its poorestresidents. In these and similar situations around thecountry, the affected communities have argued thatthey, as poor or minority communities or Indiantribes, suffer disproportionately from environmentalharms and from the burdens of living nearunwanted, polluting facilities. People have raisedenvironmental justice claims for more than twodecades, but only recently has environmental justicereached national levels of attention.

What is Environmental Justice?In the past twenty years, people have become

increasingly concerned about “environmentaljustice,” which deals with the the issue of minoritiesand low-income people suffering disproportionateexposure to environmental harms. Although recentattention has focused on facility sites near minorityor low-income populations, environmental justiceencompasses many concerns. For example, low-income and minority families are more likely to live

in substandard housing and may, therefore, facegreater threats of lead paint poisoning. NativeAmerican and other subsistence fishers, whoconsume a greater than average proportion of fishand shellfish in their diet, may be disproportionatelyaffected by pollutants that accumulate in the foodchain. Farm workers experience exposure topesticides at a greater rate than the generalpopulation. Low-income families may bemore likely to live in heavily industrial areas wheremultiple sources of pollution exist. Concerns aboutthese issues have propelled the grassrootsenvironmental justice movement, which combinescivil rights and social equity issues withenvironmental concerns. A goal of environmentaljustice, or environmental equity, is equal protectionfrom environmental harms. Environmental justicealso includes the fair enforcement of environmentallaws and meaningful access and participation indecisions that affect peoples’ health, environment,and quality of life.

Environmental justice first gained nationalprominence in 1982 when more than 500 civil rightsand environmental activists were arrested whileprotesting the proposed location of a PCB(polychlorinated biphenyl) landfill in WarrenCounty, North Carolina. Following these protests,several widely-cited studies found a strongcorrelation between racial demographics and thelocation of environmental hazards, notably a 1983General Accounting Office study and a 1987 reportby the Commission for Racial Justice, UnitedChurch of Christ.1 In October 1991, approximately

1Commission for Racial Justice, United Churchof Christ, Toxic Wastes and Race in the UnitedStates: A National Report on the Racial and Socio-

2 UNITED STATES ATTORNEYS’ BULLETIN FEBRUARY 2000

600 grassroots and national delegates met at theFirst National People of Color EnvironmentalLeadership Summit in Washington, D.C., andadopted seventeen “Principles of EnvironmentalJustice.”2 In response to the growing publicconcern, in 1992, the EPA created the Office ofEnvironmental Equity, which is now the Office ofEnvironmental Justice.3

In 1994, President Clinton signed ExecutiveOrder 12898, “Federal Actions to AddressEnvironmental Justice in Minority Populations andLow-Income Populations.”4 The Executive Orderrequires each agency “to make environmentaljustice a part of its mission by addressing, asappropriate, disproportionately high and adversehuman health or environmental effects of itsprograms, policies, and activities on minoritypopulations and low-income populations.” Amongother things, the Order requires each agency todevelop an environmental justice strategy, anddirects agencies to ensure that any programs oractivities substantially affecting human health orthe environment do not exclude people frombenefits of those activities, or subject them todiscrimination, based on race, color, or nationalorigin. In an accompanying memorandum, thePresident directed agencies to ensure that allprograms or activities receiving federal financialassistance that affect human health or theenvironment comply with Title VI of the Civil

Rights Act of 1964 (which prohibits discriminationbased on race, color, or national origin), and toconsider environmental justice impacts inenvironmental reviews made under the NationalEnvironmental Policy Act (NEPA).5 TheDepartment of Justice issued its environmentaljustice strategy in April 1995.

While there is still some scholarly debate aboutthe existence of environmental injustice — a 1995GAO report, for instance, reviewed ten studiesanalyzing the correlation between race andproximity to hazardous waste facilities, andconcluded that the studies were contradictory6—the Administration has taken the issue seriously. The Executive Order reflects the commitment of theAdministration to address these complex issues andto achieve the goals of environmental justice. Manystates also have created environmental justiceprograms to address these issues.

How Environmental Justice Issues May Arise inDepartment Litigation

While environmental justice encompasses abroad social movement, communities and theiradvocates have used litigation to furtherenvironmental justice goals, and the Departmentalso has promoted environmental justice through itslitigation. The following section provides a briefoverview of some ways environmental justice issuesarise in the Department’s litigation, and suggestsways in which Department attorneys can addressthese issues.

(1) Civil and criminal environmental enforcementThe Environment and Natural Resources

Economic Characteristics of Communities withHazardous Waste Sites (1987); U.S. GeneralAccounting Office, Siting of Hazardous Waste Landfillsand Their Correlation with Racial and EconomicStatus of Surrounding Communities (GAO/RCED-83-168, June 1, 1983).

2Reprinted in People of Color EnvironmentalGroups: 1994-1995 Directory at 4 (Robert D. Bullard,ed., Charles Stewart Mott Foundation 1994).

3The website for the Office of EnvironmentalJustice is found at http://es.epa.gov/oeca/oejbut.html.

4Federal Actions To Address EnvironmentalJustice in Minority Populations and Low-IncomePopulations, 59 Fed. Reg. 7629 (Feb. 11, 1994).

5 Memorandum for the Heads of AllDepartments and Agencies, Feb. 11, 1994.

6 U.S. General Accounting Office, Hazardousand Nonhazardous Waste: Demographics of PeopleLiving Near Waste Facilities (GAO/RCED-95-84 June13, 1995) (concluding that minorities or low-incomepeople were not overrepresented near a majority ofnonhazardous municipal landfills, and that a review often existing studies of the demographics near hazardouswaste facilities had conflicting conclusions).

Division (ENRD) and the United States Attorney’sOffices bring both civil and criminal cases toenforce the nation’s environmental laws. In manyof these cases, the affected communities are low-income populations, minority populations, or Indiantribes, so cleanups and other remedies that resultfrom successful litigation benefit these communitiesand promote environmental justice. In civilenvironmental enforcement, consistent with theDepartment’s Guidance Concerning EnvironmentalJustice7 and ENRD policy, attorneys shouldconsider the following:C Assess each enforcement case to determine

whether it raises potential environmental justiceissues. Agency referrals, draft pleadings, orother documents pertaining to a case may notexplicitly identify a case as an environmentaljustice matter. Your office may wish to consultwith the client agency to gather additionalinformation about the demographics of theaffected community.

C Identify environmental justice issues, reportthem on your docket sheets, and contact yourenvironmental justice or environmentalcoordinator. Each section in the ENRD has adesignated environmental justice contact. TheExecutive Office for United States Attorneyshas an environmental justice contact and mostUnited States Attorneys’ Offices also have anenvironmental contact person.

• Consider conducting outreach to the affectedcommunities to promote participation in theagency decision-making process concerningremedies. In reaching settlements in these civilcases, consult with the affected community andexplore possible supplemental environmentalprojects (SEPs). SEPs are environmentallybeneficial projects that defendants agree to

undertake in the settlement of civil enforcementactions, often with direct benefits to thecommunity. SEPs are required to have anadequate nexus, or relationship, to the allegedviolations. The EPA’s SEP policy encouragesthe use of community input for developingprojects in appropriate cases, and provides thatcommunity input be a factor to consider whilemitigating penalties.8 DOJ, in conjunction with HUD and EPA,

recently launched an initiative to enforce theResidential Lead-Based Paint Hazard Reduction Actof 1992, a statute requiring disclosure andnotification of lead-based paint hazards in pre-1978 housing. This statute responds to findingsthat low-level lead poisoning is widespread amongAmerican children, disproportionately affectingminority and low-income children. EOUSArecently forwarded to each USAO Civil Chief apacket of information on how to investigate andlitigate these cases.

The Environmental Crimes Section of ENRDand the United States Attorneys’ Offices also haveprosecuted defendants in cases in which pollutionhas impacted communities covered by ExecutiveOrder 12898. These cases include successfulconvictions of defendants who illegally appliedcommercial pesticides, designed for outdoor use, inlow-income homes around the country; those whoexploited homeless workers by making themparticipate in illegal asbestos removal operationswithout proper safety precautions or training; andthose who illegally dumped hazardous wastes inlow-income and minority neighborhoods. (2) Civil Rights enforcement

The Department also has provided guidance toagencies and to courts on the interaction between

7 The Department of Justice GuidanceConcerning Environmental Justice may be found atDOJ’s website, at the following address:http://www.usdoj.gov/enrd/ejguide.html.

8 See EPA Supplemental EnvironmentalProtects Policy, 63 Fed. Reg. 24796 (May 5, 1998). TheSEP policy as well as a national database of SEPs canbe found at EPA’s website at http://es.epa.gov/oeca/sep/.


environmental justice and Title VI of the CivilRights Act of 1964, 42 U.S.C. § 2000d et seq. Title VI of the Civil Rights Act of 1964 prohibitsdiscrimination based on race, color, or nationalorigin in programs and activities that receive federalfinancial assistance. Nearly all agencies haveadopted implementing regulations that apply notonly to intentional discrimination but also topolicies and practices that have a discriminatoryeffect. See Guardians Ass’n v. Civil Serv.Comm’n, 463 U.S. 582 (1983) (holding that whileTitle VI itself requires proof of discriminatoryintent, agencies may validly adopt regulationsimplementing Title VI that also prohibitdiscriminatory effects); Alexander v. Choate, 469U.S. 287 (1985) (restating holding in Guardiansthat disparate impact violations could be addressedthrough regulations implementing Title VI). Persons who believe they have been subject todiscrimination violating Title VI may file a lawsuitin district court or file an administrative complaintwith the Office of Civil Rights of the federal agencywhich funds the program or activity that allegedlycaused the discrimination.

Environmental justice advocates have filed bothjudicial and administrative complaints alleging thatstate environmental agencies (the recipients of EPAfunds) have violated both Title VI and EPA’simplementing regulations in issuing environmentalpermits or otherwise running their programs in away that results in adverse discriminatory impacts. Department attorneys have been involved in theseissues in several ways:

C Amicus Participation The Department participated as amicus curiae

in a Third Circuit case where plaintiffs challenged aproposed waste facility in the predominantlyAfrican-American city of Chester, Pennsylvania. Inthat case, the Third Circuit held that citizens have aprivate right of action to enforce EPA’s disparateimpact Title VI regulations. Chester Residents fora Quality Living et al. v. Seif et al., 132 F.3d 925(3d Cir. 1997), cert. granted, 118 S. Ct.2296, vacated as moot, 119 S. Ct. 22(1998). The Supreme Court vacated on mootnessgrounds because the company seeking the permit atissue had withdrawn its application.

C Advice to Client AgenciesAttorneys in the Civil Rights Division and

ENRD also have provided technical and legalassistance to client agencies concerning Title VIadministration complaints. Since 1993, the EPAhas received approximately 50 administrative TitleVI complaints alleging a theory of disproportionateadverse impacts from environmental permitting. The EPA has accepted a number of thesecomplaints for investigation, and it issued its firstsubstantive decision in October 1998.9 In March1998, the EPA issued an interim guidance toprovide a framework for the EPA’s Office of CivilRights to process these complaints.10 Departmentattorneys provided legal expertise to the EPA duringits development of this guidance and during theinvestigation of some specific cases. The CivilRights Division also consulted with the Departmentof Transportation (DOT) concerning some of theirTitle VI administrative complaints.

(3) Defensive posture

9 The complaint alleged that the MichiganDepartment of Environmental Quality’s (MDEQ)issuance of a Clean Air Act permit for a proposed steelrecycling mini-mill in Flint, Michigan, would result indiscrimination. EPA found that there would be noadverse health impacts from the proposed emissions,and therefore there would be no unjustified disparateimpacts. The EPA letter explaining the decision can befound on the internet at the following address: http://www.epa.gov/region5/steelcvr.htm.

10 The Interim Guidance can be found at: http://es.epa.gov/oeca/oej/titlevi.html. The guidancehas generated much controversy among state andindustry groups, who have said that EPA’simplementation of Title VI will discourage urbanredevelopment efforts and create costly uncertainty inthe environmental permitting process. EPA isaddressing these concerns by obtainingrecommendations for Title VI implementation from abroadly representative Federal Advisory Committee Actadvisory council; by conducting outreach to interestedparties; and by reviewing the public comments.

Sometimes, environmental justice issues arisewhen a federal agency’s actions are challenged, andDepartment attorneys defend the agency in court. For example, plaintiffs might file a lawsuit underthe National Environmental Policy Act (NEPA), 42U.S.C. § 4321, et seq., alleging that an agency didnot adequately conduct an environmental reviewbefore taking a major federal action. NEPArequires federal agencies to analyze theenvironmental impacts of major federal actionssignificantly affecting the quality of theenvironment. Before embarking on an action, anagency may conduct an Environmental Assessment(EA) to determine whether there are significantenvironmental impacts. If, at the conclusion of theEA, the agency finds a significant impact, it thenproduces an Environmental Impact Statement(EIS), which includes an analysis of impacts on thenatural and physical environment, and associatedsocial, economic, and cultural impacts. InDecember 1997, the White House Council onEnvironmental Quality (CEQ), issued guidance onhow agencies should address environmental justiceissues in the NEPA process. Because NEPA is aprocedural statute that does not mandate anoutcome, environmental justice challenges raisingsubstantive claims, brought under NEPA, are notalways successful. See, e.g. New River ValleyGreens v. United States Department ofTransportation, 161 F.3d 3 (4th Cir. 1998). Someclaims have alleged that federal agencies failed tocomply with their obligations under the ExecutiveOrder. Such claims fail, however, because anExecutive Order is not privately enforceable whereit does not explicitly provide for privateenforcement. See, e.g., Zhang v. Slattery, 55 F.3d732, 748 (2d Cir. 1995) (not an environmentaljustice case).

In defending cases raising environmentaljustice concerns, the Department encouragesattorneys to work with the client agency to explorewhether there was adequate public participation inthe decision-making process, to find whetheralternatives to litigation are appropriate, and to

address the substantive legal questions that havebeen raised. The Community Relations Service(CRS), a Department component that providesmediation, conciliation, and technical assistance tocommunities experiencing tensions or conflictsarising from perceived discriminatory actions,policies, and practices,11 is a resource that we cantap in some situations. The CRS has providedconciliation and mediation services in environmentaljustice matters, often before they are in litigation.

Department attorneys have frequently providedadvice and guidance to our client agencies beforethere is litigation over environmental justice issues. In such circumstances, we are often able to workwith the agency, to come up with innovativesolutions to address the underlying concerns of thecommunity, and to ensure that the agency addressesenvironmental justice concerns. The Departmentalso encourages the use of alternative disputeresolution (ADR) to resolve environmental justiceclaims.

How Department Attorneys Can PromoteEnvironmental Justice Outside of Litigation

Department attorneys can promoteenvironmental justice outside of litigation in avariety of ways, including community building andinteragency cooperation efforts. These can include:

C Incorporating Environmental Justice intoWeed and Seed programs

Operation Weed and Seed, which operates outof the Office of Justice Programs, is aneighborhood-focused coordination strategy,currently implemented in more than 150communities around the nation, to prevent andcontrol crime and improve the quality of life. Onthe “seeding” side of building communities,strategies have included environmental restorationand environmental justice. For example, in

11See 42 U.S.C. 2000g-1.


Houston, Texas, the United States Attorney’sOffice has incorporated Rat-on-a-rat (ROAR)program, which seeks to protect land and waterresources in low-income neighborhoods through acitizen hotline, investigation, and enforcementagainst the illegal transport and dumping of solidand hazardous wastes. In addition, several Weedand Seed sites are engaged in brownfieldsrestoration projects. Brownfields are abandoned,idle, or under-used industrial or commercialproperties, where real or perceived environmentcontamination complicates redevelopment. Restoration of these sites to economicallyproductive properties brings jobs to neighborhoodsthat need them, stems suburban sprawl andgreenfields development, and cleans upcontaminated areas.

C Holding Community MeetingsA useful way to gather information about

environmental problems facing a community is tosponsor local meetings and hear directly from localcommunity members. Including local and stateenforcement officials in community meetings helpsensure that all officials with authority to respond tospecific problems are present. A town hall-stylemeeting, where the community can addressenforcement officials directly, is a very effectiveway to solicit community concerns. Theinformation gathered from community meetings canserve as a basis for further investigation. Thiscollaboration helps state and local enforcementagencies that may have additional legal tools tocomplement federal authorities in dealing with localenvironmental problems.

C Participating in Interagency CoordinationThe White House Council on Environmental

Quality (CEQ) has sponsored some regionalinteragency efforts to address environmental justiceissues in a comprehensive way. In July 1998, highlevel agency officials (including CEQ, EPA,USDA, DOI, DOC, DOJ, and HUD) met withenvironmental justice advocates, local businessleaders, elected officials, and communityrepresentatives to discuss major environmental

issues of concern in Los Angeles. Following themeeting, a regional interagency task force to addressspecific issues was developed. The CEQ held itssecond regional meeting in New York City in March1999. Assistant United States Attorneys in the areaare participating in the interagency activities thatcame out of this meeting, including the developmentof an environmental enforcement workshop.

ConclusionDepartment attorneys can do much through both

litigation and programs to promote environmentaljustice. Addressing environmental justice is noteasy, but the principles behind it —environmental protection for people of all incomesand races, and opportunities for meaningful publicparticipation in government — are ones thatwe should all try to promote. ò

Guidance to Client Agencies onCompiling the Administrative RecordJoan GoldfrankFormer, Senior Counsel for ProfessionalResponsibility and Administration Policy,Legislation and Special Litigation SectionEnvironment and Natural Resources Division

Many cases for which ENRD is responsibleinvolve defending a federal agency’s decision. Inthese cases, compiling an administrative record isnecessary for the agency. It is the purpose of thisarticle to provide guidance to the agency personnelwho compile administrative records.

This article provides only internal Departmentof Justice guidance. It does not create any rights,substantive or procedural, which are enforceable atlaw by any party. No limitations are hereby placedon otherwise lawful prerogatives of theDepartment of Justice or any other federal agency.

IntroductionUnder the Administrative Procedure Act

(APA), a court reviews an agency’s action todetermine if it was “arbitrary, capricious, an abuseof discretion, or otherwise not in accordance withlaw.” 5 U.S.C. § 706(2)(A). In making thisdetermination, a court evaluates the agency’s entireadministrative record. The administrative record isthe paper trail that documents the agency’sdecision-making process and the basis for theagency’s decision.

The APA governs judicial review of achallenged agency decision. However, severalstatutes specify what documents and materialsconstitute an administrative record see 42 U.S.C. § 7607(d)(7)(A) (provision states what materialswill constitute the record for judicial review ofcertain enumerated types of rule making issued

under the Clean Air Act); 42 U.S.C. § 9613(j), (k)(CERCLA). At the outset, make sure to determinewhether a statute, (other than the APA), applies inthe case. In addition, regulations may govern howto assemble a record. See, e.g., 40 C.F.R. §§300.800 -.825 (CERCLA); 40 C.F.R. Part 24(RCRA Corrective Action). See also FederalRules of Appellate Procedure Rules 16 and 17(record on review or enforcement and filing of therecord).

The purpose of this article is to provideguidance to agencies in compiling theadministrative record of agency decisions otherthan a formal rule making or an administrativeadjudication. Optimally, an agency will compilethe administrative record as documents andgeneration or receipt of materials occurs during theagency decision-making process. The record maybe a contemporaneous record of the action. However, the agency may compile theadministrative record after litigation has beeninitiated. An agency employee should bedesignated to be responsible for compiling theadministrative record. That individual will beresponsible for certifying the administrative recordto the court. The individual should keep a recordof where she or he searched for the documents andmaterials, and whom they consulted whilecompiling the administrative record.

Taking great care in compiling a completeadministrative record is critical for the agency. Ifthe agency fails to compile the wholeadministrative record, it may significantly impactboth our ability to defend and the court’s ability toreview a challenged agency decision.

General Principles for Compiling theAdministrative Record


The administrative record consists of alldocuments and materials directly or indirectlyconsidered by the agency decision-maker in makingthe challenged decision. It is not limited todocuments and materials relevant only to themerits of the agency’s decision. It includesdocuments and materials relevant to the process ofmaking the agency’s decision. For example,

• Documents and materials whether or not theysupport the final agency decision;

• Documents and materials which were availableto the decision-making office at the time thedecision was made;

• Documents and materials considered by, orrelied upon, by the agency;

• Documents and materials that were before theagency at the time of the challenged decision,even if the final agency decision-maker did notspecifically consider them; and

• Privileged and non-privileged documents andmaterials.

Where To Find The Documents and MaterialsThat Comprise The Administrative Record

The agency employee responsible forcompiling the administrative record should bereliable, careful, and prepared to provide anaffidavit. The person should keep a record ofwhere he or she searched for documents and whomhe or she consulted in the process. The identifiedperson should conduct a thorough search forcompiling the whole record. They should:• Contact all agency people, including program

personnel and attorneys, involved in the finalagency action and ask them to search their filesand agency files for documents and materialsrelated to the final agency action and includeagency people in field offices;

• Contact agency units other than programpersonnel, such as congressional andcorrespondence components;

• Where personnel involved in the final agencyaction are no longer employed by the agency,search the archives for documents andmaterials related to the final agency action. Aformer employee may be contacted forguidance about where to search;

• Determine whether there are agency filesrelating to the final agency action. If there aresuch files, search them;

• If more than one agency was involved in thedecision-making process, the lead agencyshould contact the other agencies to be sure therecord contains all the documents andmaterials considered or relied on by the leadagency;

• Search a public docket room to determinewhether there are relevant documents ormaterials.

What Documents and Materials to Include inThe Administrative Record

A. Types of materials:• Documents to include in the administrative

record should not be limited to paper butshould include other means of communicationor ways of storing or presenting information,including E-mail, computer tapes and discs,microfilm, and microfiche. See 36 C.F.R.Chapter XII, subchapter B (electronicrecords). Data files, graphs, charts, andhandwritten notes should also be included. Donot include personal notes, meaning anindividual’s notes taken at a meeting orjournals maintained by an individual, unlessthey are included in an agency file. Agencycontrol, possession, and maintenancedetermine an agency file.

B. Kinds of Information:• Include all documents and materials prepared,

reviewed, or received by agency personnel andused by or available to the decision-maker, even though the final decision-makerdid not review or know about the documentsand materials;

• Include policies, guidelines, directives, andmanuals;

• Include articles and books. Be sensitive tocopyright laws governing duplication;

• Include information or data;• Include communications the agency received

from other agencies and from the public, andany responses to those communications. Be

aware that documents concerning meetingsbetween an agency and Office of Managementand Budget (OMB) should be included butmay qualify, either partially or fully, for thedeliberative process privilege;

• Include documents and materials that containinformation that supports or opposes thechallenged agency decision;

• Exclude documents and materials that were notin existence at the time of the agency decision;

• As a rule, do not include internal “working”drafts of documents, whether or not they were superseded by a complete, edited version of thesame document. Generally, include all draftdocuments that were circulated for commenteither outside the agency or outside theauthor’s immediate office, if changes in thesedocuments reflect significant input into thedecision-making process. Drafts, excluding“working” drafts, should be flagged for advicefrom the Department of Justice attorney or theAssistant United States Attorney (AUSA) onwhether: 1) the draft was not an internal“working” draft; and 2) the draft reflectssignificant input into the decision-makingprocess;

• Include technical information, samplingresults, survey information, engineeringreports or studies;

• Include decision documents;• Include minutes of meetings or transcripts

thereof; and• Include memorializations of telephone

conversations and meetings, such as amemorandum or handwritten notes, unless theyare personal notes.

How to Handle Privileged Documents andMaterials

Generally, the administrative record includesdocuments and materials that are privileged and contain protected information. However, once the

record is compiled, privileged or protecteddocuments and materials are redacted or removedfrom the record.

The agency should consult with the agencycounsel and the Department attorney or the AUSAas to the type and the extent of the privilege(s)asserted. Be sensitive to the relevant privilegesand prohibitions against disclosure including, butnot limited to, attorney-client, attorney workproduct, Privacy Act, deliberative or mentalprocesses, executive, and confidential businessinformation.

If documents and materials are determined tobe privileged or protected, the index of record mustidentify the documents and materials, reflect thatthey are being withheld, and state on what basisthey are being withheld.

How to Organize the Administrative Record• Organize the documents and materials in a

logical and accessible way;• Organize the documents and materials in

chronological order and/or by topic;• Separate documents and materials that do not

fit into a chronological order by category, e.g.,internal policies, guidelines, or manuals;

• After a Department of Justice attorney or anAUSA has had the opportunity to review theadministrative record for completeness andorganization, date stamp or number each item. A Department of Justice attorney or an AUSAmay review the documents and materials theagency excluded from the administrativerecord;

• Prepare an index to the administrative record;• Make sure the index identifies each document

and material by the date stamp number ordocument number and includes a briefdescription of the document or material, forexample, “memorandum dated June 5, 1997from Mary Smith to the EPA AdministratorJones regarding June 6, 1997 meeting agenda.” If a document or material is being withheld


based on a privilege or prohibition, state theprivilege or prohibition.

• Make sure the agency certifies theadministrative record.12 Certification languageshould reflect how the agency person who wasresponsible for compiling the record haspersonal knowledge of the assembly of theadministrative record. Attached are samplecertificates. Neither a Department of Justiceattorney nor an AUSA should certify therecord in order to avoid the possibility of beingcalled as a witness in the case;

• Make sure the Department of Justice attorneyor the AUSA consults the local rules of thecourt in which the matter is pending todetermine how to file the administrative recordwith the court. If the local rules are silent onthis issue, the Department of Justice attorneyor the AUSA can address the issue with theparties and the court. For example, it may beappropriate to file the index with the court andto give the parties copies of the index and theopportunity to review the record, or to file theparts of the record that the parties will rely onas grounds for their motions for summaryjudgment. The United States Attorney’sOffice in the jurisdiction in which the matter ispending should be consulted.

Important for Court to Have the WholeAdministrative Record• A court reviews the agency action based on the

administrative record before the agency at thetime the decision was made.

• The whole administrative record allows thecourt to determine whether the agency’sdecision complied with the appropriate APAstandard of review.

• All agency findings and conclusions and thebasis for them must appear in the record.

• The administrative record is the agency’sevidence that its decision and its decision-

making comply with relevant statutory andregulatory requirements.

• A court may remand the matter where theagency’s reasoning for its decision is notcontained in the administrative record.

Consequences of Incomplete AdministrativeRecord • If the record is incomplete, the government

may be permitted to complete it, but, by doingso, you also may raise questions about thecompleteness of the entire record.

• If the court decides the record is not complete,it should remand the matter to the agency. Itmay, however, allow extra-record discovery,including depositions of agency personnel, andmay allow court testimony of agencypersonnel.

• Generally, although it may vary from circuit tocircuit, courts will allow discovery when aparty has proffered sufficient evidencesuggesting bad faith or improprieties that mayhave influenced the decision-maker, or that theagency relied on substantial materials notincluded in the record.

• A party must make a strong showing that oneof these exceptions applies before a court willallow extra-record inquiry.

Supplementation of the record • When the administrative record fails to explain

the agency’s action, effectively frustratingjudicial review, the court may allow the agencyto supplement the record with affidavits ortestimony.

• Be aware that once the governmentsupplements the record with affidavits ortestimony, the opposing party may depose yourwitnesses and/or submit additional affidavitsor testimony.

• Be aware that if agency counsel becomes apotential witness, it may be appropriate toscreen the agency counsel from participation inthe litigation. ABA Model Rule ofProfessional Responsibility 3.7.

Conclusion12If the agency fails to certify the record, the

government may not be able to file a motion forsummary judgment.

When an agency must defend a final agencyaction before a court, it should take great care inpreparing the administrative record for thatdecision. It is worth the effort and may avoidunnecessary and unfortunate litigation issueslater.ò


Role of the Policy, Legislation, andSpecial Litigation SectionPauline MiliusChief, Policy, Legislation and SpecialLitigation SectionEnvironment and Natural Resources Division

Tim DowlingFormerly, Attorney, Policy, Legislation andSpecial Litigation SectionEnvironment and Natural Resources Division

The Policy, Legislation and Special LitigationSection (PLSL) of the Environment and NaturalResources Division (ENRD) handles two types oflitigation: 1) amicus curiae matters and 2) “citizensuits” to enforce the Clean Water Act and CleanAir Act, in which the United States, though not aparty, has a significant interest. The Divisionsometimes calls upon Assistant United StatesAttorneys to help with these cases, and welcomesinput from the United States Attorneys’ offices.

A. Amicus Curiae Matters. — PLSLcoordinates an active ENRD program to identify,consider, and participate as amicus curiae in casesthat raise important questions affectingenvironmental law, natural resources and publiclands, or Native Americans. For example, in thepast few years, the Division has consideredapproximately 100 requests for amicusparticipation throughout the country and has filedamicus briefs in dozens of these cases. TheDivision most frequently submits amicus briefs forthe Environmental Protection Agency and theDepartment of the Interior (Fish and WildlifeService, Bureau of Indian Affairs), the Army(Corps of Engineers), and the Department ofCommerce (National Marine Fisheries Service);however, we welcome referrals from any federalagency or the public. We have filed many of ouramicus briefs in cases brought to our attention byTribes, with whom the United States has a trust

relationship, or litigants in environmental “citizensuits.” We especially encourage Assistant UnitedStates Attorneys to call to our attention cases inwhich the United States might have an interest.

The Division’s Amicus Committee meetsmonthly to consider new or pending amicusmatters, and to screen requests and ensurecoordinated litigating positions. The Committeealso considers cases in which the Division receivesnotice pursuant to 28 U.S.C. § 2403(a) (that theconstitutionality of a federal statute has been calledinto question). The Committee consists of thechiefs of several ENRD Sections, or theirdesignees, and the Deputy Assistant AttorneyGeneral acts as chair. Interested Assistant UnitedStates Attorneys, and attorneys from clientagencies, are always welcome to attend thesemeetings in person, or to participate by telephone. A PLSL attorney, who acts as secretary to theCommittee, coordinates meetings. To learn moreabout the Committee, or to receive an agenda foran upcoming meeting, please call PLSL at (202)514-1442.

The Division views amicus curiae briefs as important and effective tools for helping the courtand putting forward the views of the United States,and is very interested in hearing from AUSAsabout matters in which amicus participation mightbe appropriate. Among the factors that theDivision considers when screening cases are thecourt in which the case is pending, the significanceof the affected interest, and whether the briefingschedule allows adequate time for participation. Cases in the United States Supreme Court andfederal Courts of Appeals generally take priorityover federal district court cases. In part becausestate court cases often do not raise federalquestions, participation in state courts is unusual. Decisions to file amicus briefs are made by theAssistant Attorney General or Deputy AssistantAttorney General, in coordination with our clientsand interested United States Attorneys. The

Solicitor General must also authorize appellateamicus briefs in federal or state court.

“Citizen suits” to enforce environmental lawsagainst non-federal defendants may present a goodopportunity for amicus participation because,although the United States is not a party to theseactions, there are often important questions ofstatutory construction, citizen plaintiffs’ Article IIIstanding, and the limits of federal authority underthe Commerce Clause or the Tenth Amendment. Federal amicus participation can help to ensure thecourt hears the views of the United States. Forexample, ENRD recently filed an amicus brief toadvise the Ninth Circuit of the government’sposition that persons conducting Superfundcleanups, who are themselves partly responsiblefor the contamination, may sue other potentiallyresponsible parties only for contribution andcannot assert claims for joint and several liability. The Ninth Circuit adopted the position of our brief.

Attorneys from PLSL, the Appellate Section,or other ENRD Sections generally write amicusbriefs. However, where we are aware that anamicus matter might affect litigation being handledby a United States Attorney’s office, we encouragethat office to provide ideas on whether to file orwhat position to take. In a recent Southern Districtof Texas citizen enforcement action that involvedan interpretation of Environmental ProtectionAgency hazardous waste regulations, the Divisiondecided not to write a new amicus brief because anAssistant United States Attorney in New York hadrecently briefed a closely-related issue in anenforcement action brought by the United States. Rather than writing a new brief, we arranged for acopy of the Assistant United States Attorney’sbrief to be lodged with the court, shortly afterwhich the court issued a favorable opinion.

B. Citizen Suits Under EnvironmentalStatutes. — Although the United States, with theindividual states, has primary responsibility forenforcing the nation’s environmental laws, manyenvironmental statutes also authorize privateindividuals to bring enforcement actions.

Environmental citizen suits, like environmentallaws themselves, are a recent development. Thereis more extensive precedent regarding citizen suitsbrought on behalf of the public to enforce otherpublic legislation. In 1943, Jerome Frank coinedthe term "private attorneys general" to describeindividuals who sue to enforce public legislation. Associated Indus. v. Ickes, 134 F.2d 694, 704 (2dCir. 1943). In 1963, the Supreme Court explicitlyrecognized the legitimacy of citizen enforcement ofnon-economic public rights in NAACP v. Button,371 U.S. 415 (1963).

Citizens sought to protect shared publicresources in the late 1960s by initiating qui tamand public nuisance actions against pollutersfouling common air and waters. These actions didnot find favor in the courts, and suits to enjoin"public nuisances" faced enormous obstacles. These and other events galvanized Congress in the1970s to include statutory citizen suit provisions inalmost every major environmental statute adopted. One court noted, with respect to the Clean Air Act:

Fearing that Administrative enforcementmight falter or stall, the citizen suitsprovision reflected a deliberate choice byCongress to widen citizen access to thecourts, as a supplemental and effectiveassurance that the Act would beimplemented and enforced. Natural Resources Defense Council v.Train, 510 F. 2d 692, 700 (D.C. Cir. 1975). * * * Thus, the Actseeks to encourage citizen participation,rather than treat it as a curiosity or atheoretical remedy.

Friends of the Earth v. Carey, 535 F.2d 165, 172-73 (2d Cir. 1976), cert. denied, 434 U.S. 902(1977). Today, there are citizens suit provisions inmost of the major federal environmental statutesand several natural resource statutes. Of the majorenvironmental statutes, only the FederalInsecticide, Fungicide, and Rodenticide Act(FIFRA) lacks a means of citizen enforcement.


ENRD views citizen enforcement as animportant tool. The responsible exercise of citizenenforcement proceedings provides a strongincentive for regulated entities to comply with thelaw. Thus, citizen suits help fill the gap betweenthe government’s limited enforcement resourcesand the number of violations that may warrantenforcement. In addition, citizen suits enable thosemost affected by pollution— those downstream,downwind, or who live, work, or recreate in anarea affected by pollution— to protect the healthand environment of themselves, their families, andtheir communities when federal, state, and localgovernments fail to do so.

The ENRD statutory rule in monitoring citizensuit litigation is to ensure the appropriate use ofcitizen suits to attain those goals. Under both theClean Water Act and the Clean Air Act, consentjudgments are proposed to ensure that theyadequately address the violations at issue and meetother applicable legal requirements. Citizen suitsoften attract substantial public attention andUnited States Attorneys’ Offices may, from time-to-time, receive press inquiries about citizenenforcement actions. Assistant United StatesAttorneys should feel free to contact PLSL at(202) 514-0424 in such situations.

1. Citizen suit notice — Under the citizenenforcement provisions of the major environmentalstatutes, citizens are required to notify the agencywith enforcement authority before bringing suit. See, e.g., 33 U.S.C. § 1365(b). Mandatory pre-filing notice serves severalimportant functions. Notification to federal andstate authorities alerts them to the allegedviolations, enabling them to undertake enforcementaction. Notice to the potential defendant enables itto investigate the factual basis for the allegedviolations, and to inform the citizens if theallegations are unfounded. Notice to the potentialdefendant also allows the parties to discusssettlement before litigation ensues. Even if anegotiated resolution of the matter is not feasible,providing notice to the potential defendant mayallow it to correct the violations, enabling thepotential defendant to avoid or reduce its liability. In addition, because notice to federal and stategovernments is necessary to allow them to take

action, it is only fair that the alleged violator alsoreceive notice of the alleged violations.

2. Intervention — Although the United Statesdoes not routinely intervene in citizen suits, it maydo so if ENRD and the client agency determinethat intervention is an effective enforcementstrategy. Through intervention, the United Statesoften can focus on the central issues of a case,such as the alleged violation of an environmentalstatute and how any such violation can becorrected, rather than peripheral issues unique tocitizen suits, such as plaintiff’s standing orwhether the violations were ongoing at the time ofthe filing of the complaint. Thus, the involvementof the United States can prompt earnest settlementnegotiations and save substantial administrativeand litigation costs.

Since most citizen suit provisions requirecitizens to give at least 60 days notice to EPA (aswell as the state and the potential defendant), EPAhas the opportunity to take enforcement actionduring this interval. However, as 60 days isgenerally not sufficient time to develop anenforcement referral, EPA rarely requests that theDepartment of Justice file a judicial enforcementaction after receiving a citizen suit notice. This isdue to the fact that EPA does not reorder itsenforcement priorities merely because a citizenfiles a notice of suit. In addition, EPA often viewsthe citizen’s plans to bring an enforcement actionas a potential reason not to expend agencyresources on the matter.

Both the Clean Water Act and the Clean AirAct contemplate that the United States will assist courts in determining whether to approve proposedsettlements of citizen enforcement actions. Congress amended both Acts to require thatproposed citizen suit consent judgments, to whichthe United States is not a party, be served on theAdministrator of the EPA and the AttorneyGeneral of the United States at least 45 days priorto entry. PLSL routinely reviews all such consentjudgments and provides its comments or objectionsto the parties and the court. In recent years, aboutfifty such consent decrees have been lodged eachyear throughout the country.

ENRD reviews proposed consent judgmentsunder the citizen suit provision of both the Clean

Water Act and Clean Air Act to ensure that suchsettlements will correct the violations, meet alllegal requirements, and benefit the public— not theplaintiff or his or her attorney. The standards forentry of a consent judgment are well established. Prior to entry, a court should ensure the judgmentis fair, reasonable, equitable, and does not violatethe law or public policy. A consent decree alsomust come within the general scope of the casemade by the pleading, and it must further theobjectives of the law upon which the complaintwas based. Where ENRD or its client agencieshave information based on specific factualknowledge or enforcement expertise that mighthelp a court in evaluating a proposed consentjudgment, the statutes provide a mechanism for theUnited States to bring that information to thecourt’s attention. Often, PLSL will ask the localUnited States Attorney’s office for assistance insuch matters, particularly when courts request theUnited States to present its views at a hearing. More often, however, the parties agree to modify aproposed consent judgment after the UnitedStates advises them of its concerns.

Yet the government’s role in such cases islimited. As the United States is not a party, theparties’ settlements do not bind the United States. The United States does not engage in discovery,and may not always have complete, independentinformation on all aspects of the proposed consent. In such circumstances, the United States mayadvise the court that it is aware of no objection to,or has no comment on, the proposed consentjudgment. If the United States subsequentlydetermines that the relief afforded in the citizen suithas not corrected the violations, or is otherwiseinappropriate, the United States remains free tobring its own enforcement action.ò


Affirmative ESA Civil Cases SeekingInjunctive ReliefSamuel D. Rauch, IIITrial AttorneyWildlife and Marine Resources SectionEnvironment and Natural Resources Division

Congress enacted the Endangered Species Act(ESA) in 1973 to conserve endangered andthreatened species and protect the ecosystems uponwhich they depend. 16 U.S.C. § 1531(b). In thefamous “Snail Darter” case, the Supreme Courtheld that the Act’s plain meaning and legislativehistory show that “Congress viewed the value ofendangered species as ‘incalculable.’” TennesseeValley Auth. v. Hill, 437 U.S. 153, 187 (1978). Congress empowered the Attorney General to suein district court to enjoin any person from violatingeither the Act or its implementing regulations. 16U.S.C. § 1540(e)(6).

Two federal agencies share principalresponsibility for enforcing the ESA. TheDepartment of the Interior’s Fish and WildlifeService (FWS) is responsible for terrestrial speciesand the Department of Commerce’s NationalMarine Fisheries Service (NMFS) is responsiblefor aquatic species. Affirmative civil actions toenforce the ESA have increased in recent years. This is in response to referrals from FWS andNMFS to the Department of Justice. Thesereferrals, in particular, regard the prohibitionagainst the unlawful “take” of listed species.

Section 9 of the ESA makes it unlawful forany person to “take” any species of fish or wildlife,listed as endangered under the ESA. Theregulations expand the statutory prohibition toinclude most species listed as threatened, as well asendangered. 16 U.S.C. § 1533(d). Congressdefined a “take” broadly, to include an act to“harass, harm, pursue, hunt, shoot, wound, kill,trap, capture, or collect, or to attempt to engage inany such conduct.” 16 U.S.C. § 1532(19). FWSregulations further define “harm” as “an act whichactually kills or injures wildlife,” including

significant habitat modification or degradation thatsignificantly impairs “essential behavioral patterns,including breeding, feeding, or sheltering.” 50C.F.R. § 17.3; Babbitt v. Sweet Home Chapter ofCommunities for a Great Oregon, 515 U.S. 687,704-05 (1995) (upholding “harm” definitionagainst facial challenge).

Any person who commits an unauthorized“take” faces several means of enforcement: privatecitizen suits filed under 16 U.S.C. §1540(g)(1)(A); civil and criminal penalties forviolations brought under 16 U.S.C. § 1540(a), (b);and injunctive actions brought by the AttorneyGeneral under 16 U.S.C. § 1540(e)(6).

Despite the broad statutory and regulatoryprohibition against a “take,” a non-federal publicentity may “take” a listed species if authorized byan “incidental take permit,” which is issued byFWS or NMFS, under ESA § 10(a). Thesepermits allow an activity to continue underprescribed conditions if the take is “incidental to,and not the purpose of” the proposed activity. 16U.S.C. § 1539(a)(1)(B).

The United States has recently stepped upenforcement actions, filing suit to enjoin bothprivate and non-federal public entities fromengaging in activities which “take” listed species. Examples include actions to enjoin an irrigationdistrict from diverting juvenile salmon intoirrigation channels and actions to prevent privatelandowners from clearing nesting habitats occupiedby endangered bird species, such as the Floridascrubjay.

The United States also sued to enjoin loggingon a parcel of private land in Oregon. United States v. West Coast Forest Resources,Civ. No. CV 96-1575-HO (D. Or. Aug. 4, 1997). A pair of threatened northern spotted owls used anest site about one-and-one-half miles from theparcel. FWS presented testimony from biologiststhat the owls used the old-growth habitat to forage. Though the court questioned the degree to which

FWS had established that the owls used this standof old growth trees, it enjoined timber harvestingfor one year, enabling FWS to use radiotelemetryequipment to monitor the birds’ movement.

In another affirmative § 9 case, theUnited States sued to enjoin the Town ofPlymouth, Massachusetts, from authorizing off-road vehicles on the town’s beach. UnitedStates v. Town of Plymouth, 6 F.Supp.2d 81 (D. Mass. 1998). FWS presentedevidence that off-road vehicles harmed endangeredpiping plover chicks both directly by running overthem, and indirectly, by degrading vegetation intheir essential feeding habitat. The court found thetown liable under ESA § 9 for harming the chicksthrough both its action and inaction.

The evidentiary standard for proving a “take”varies among the circuits, especially where itinvolves habitat modification allegedly resulting inharm. Most courts require a reasonable certaintythat a listed species will be killed or injured in thefuture, if the ongoing or proposed action is notenjoined. The mere modification of the listedspecies’ habitat, without proof of injury to theanimal, generally cannot establish a § 9 violation.

Once a violation is proven a violation, a courtcan exercise broad discretion in fashioning anappropriate remedy, so long as the relief ensuresthat the violation will abate. The United Statesgenerally seeks to enjoin the harmful activity untilthe defendant applies for and receives an incidentaltake permit under § 10. The United States alsomay compel the defendant to restore a clearedhabitat. The United States cannot seek monetarypenalties in a civil proceeding, although FWS orNMFS may assess penalties administratively.

In referring an affirmative ESA civil case,FWS and NMFS must develop specific andcredible evidence to support claims that an actionwill harm or otherwise “take” a member of a listedspecies. Given the ESA’s important statutoryobjectives, and the potential setbacks to the ESAprogram from adverse rulings, both theDepartment of Justice and United States Attorneys

should scrutinize referral packages carefully, andexercise judgment in deciding which cases presentappropriate opportunities to obtain § 9 injunctiverelief.ò


An Overview of TakingsJurisprudenceSusan V. CookSenior AttorneyGeneral Litigation SectionEnvironment and Natural Resources Division

IntroductionThe Takings Clause of the Fifth Amendment

provides “nor shall private property be taken forpublic use, without just compensation.” The aimof the Clause is to prevent the Government “fromforcing some people alone to bear public burdenswhich, in all fairness and justice, should be borneby the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

A "taking" can occur directly through theexercise of the governmental power of EminentDomain. See, e.g., United States v. 564.54 Acresof Land, 441 U.S. 506 (1979). A taking can alsooccur "indirectly,” when the Government acts in amanner which causes an inverse condemnation. First English Evangelical Lutheran Church ofGlendale v. Los Angeles County, 482 U.S. 304,315 (1987). Inverse condemnation, in turn, canoccur by direct physical invasion (referred to as a“physical taking”), Loretto v. TeleprompterManhattan CATB Corp., 458 U.S. 419, 436(1982), or by virtue of the Government’srestriction land use (referred to as a “regulatorytaking”), Penn Cent. Transp. Co. v. New YorkCity, 438 U.S. 104 (1978). Both physical andregulatory takings can be either temporary, see,e.g., Bass Enters. Prod. Co. v. United States, 133 F.3d 893 (Fed. Cir. 1997), or permanent, see,e.g., Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994).

Jurisdiction Over A Takings Claim: Is Plaintiffin the Right Court?

Jurisdiction over claims against theUnited States for a taking in excess of $10,000 isvested exclusively in the United States Court ofFederal Claims under the Tucker Act,

28 U.S.C.§ 1491(a)(1), while the Little TuckerAct, 28 U.S.C. § 1346(a)(2), grants concurrentjurisdiction to the United States District Courts incases where the amount in controversy is less than$10,000. A plaintiff seeking to bring itself withinthe jurisdiction of the federal district courts bearsthe burden of alleging that his claim does notexceed $10,000.00. See New Mexico v. Regan,745 F.2d 1318, 1322 (10th Cir. 1984). A plaintiffcan continue to maintain its claim in federal districtcourt only if it is willing to waive its right to therecovery of damages in excess of the $10,000jurisdictional limit. Smith v. Secretary of the AirForce, 855 F.2d 1544, 1553 (Fed. Cir. 1988).

The government cannot use the failure of aplaintiff to plead a particular amount incontroversy in an attempt to maintain an action indistrict court. The Federal Rules of CivilProcedure require a complaint to contain a "shortand plain statement of the grounds upon which thecourt's jurisdiction depends.” Fed. R. Civ. P. Rule 8(a). “A party cannot avoid the exclusivejurisdiction of the Claims Court under the TuckerAct by merely artfully pleading injunctive,declaratory, or mandatory relief when the purposeof the suit is to obtain money from theUnited States more than $10,000." ColoradoDept. of Highways v. U.S. Dept. of Transp., 840F.2d 753, 755 (10th Cir. 1988); see, e.g., ChulaVista City Sch. Dist. v. Bennett, 824 F.2d 1573,1579 (Fed. Cir. 1987).

An attempt by a plaintiff to designate anindividual government official by name cannotvary this rule. If the suit is one against a federalofficial for acts performed within his officialcapacity, it is considered an action against thesovereign. Portsmouth Redevelopment & Hous. Auth. v. Pierce, 706 F.2d 471, 473 (4th Cir. 1983). As such, any money judgmentwould be paid out against the public treasury andthe suit is, in fact, one against the United States. Id.; see, e.g., Amoco Prod. Co. v. Hodel,

815 F.2d 353, 359 (5th Cir. 1987) (stating "It iswell established that failing to name the UnitedStates as a defendant cannot avoid the limitationsof the Tucker Act.").

Injunctive Relief to Prevent a Taking is NotAvailable

Even if a taking is presently occurring,injunctive relief to prevent a taking is notappropriate, because it is well established that:

[e]quitable relief is not available to enjoin analleged taking of private property for a publicuse, duly authorized by law, when a suit forcompensation can be brought against thesovereign after the taking.

United States v. Riverside Bayview Homes, Inc.,474 U.S. 121, 127-28 (1985), (citing Ruckelshausv. Monsanto Co., 467 U.S. 986, 1016-17 (1984)). When it is claimed that the United States has takenproperty, a suit for compensation can be broughtunder the Tucker Act, 28 U.S.C. § 1491, andheard by the appropriate court after the taking. Id. at 1016. As the court explains, “[t]his maxim restson the principle that so long as compensation isavailable for those whose property is in fact taken,the governmental action is not unconstitutional.” United States v. Riverside Bayview Homes, Inc.,474 U.S. at 128, (citing Williamson CountyRegional Planning Comm’n v. Hamilton Bank ofJohnson City, 473 U.S. 172, 194-95 (1985)).

Thus, the Fifth Amendment “does not prohibitthe taking of private property, but instead, places acondition on the exercise of that power,” and isdesigned "not to limit the governmentalinterference with property rights per se, but tosecure compensation in the event of otherwiseproper interference amounting to a taking." FirstEnglish Evangelical Lutheran Church v. LosAngeles, 482 U.S. at 314-15. Compensation neednot be paid before, or even contemporaneouslywith, the taking. Preseault v. ICC, 494 U.S. 1, 11(1990).

Accordingly, a suit for a taking must first bebrought in the Court of Federal Claims, unlessCongress has withdrawn the Tucker Act grant ofjurisdiction in the relevant statute. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984). Courts normally presume that the Tucker Actremedy is available. To obtain an injunction basedon a claim of an unconstitutional taking, a claimantmust overcome the presumption that a Tucker Actremedy is available by presenting clear evidencethat Congress has withdrawn the remedy. Under anarrow exception to this general rule, a court willnot presume the availability of a Tucker Actremedy where the claimant brings a takingschallenge to a statute that compels a direct transferof funds. Eastern Enters. v. Apfel, 524 U.S.498, (1998) (citing In re Chateaugay Corp, 53F.3d 478, 493 (2nd Cir.), cert. denied sub. nom,LTV Steel Co. v. Shalala, 516 U.S. 913 (1995)). Monetary relief is not presumed to be available inthese cases because, if the payments are deemed tobe a taking, monetary relief would result in themeaningless exercise of having the governmentreimburse the claimant, dollar for dollar, for eachpayment made. Eastern Enters. v. Apfel, 524U.S. 498, (1998).

Need for the Government Action in Question toBe “Authorized”

A compensable taking arises only if thegovernment action in question is “authorized.” Del-Rio Drilling Programs, Inc. v. United States,146 F.3d 1358, 1362 (Fed. Cir. 1998). Authorizedmeans that the government agents were actingwithin “the general scope of their duties,” i.e.,“their actions are a ‘natural consequence ofcongressionally approved measures,’ ” Id. at 1362(quoting NBH Land Co. v. United States, 576F.2d 317, 319 (Ct. Cl. 1978)), “or arepursuant to ‘the good faith implementation of aCongressional Act.’” Del-Rio DrillingPrograms, Inc. v. United States, 146 F.3d at 1362(quoting Southern Cal. Fin. Corp. v.United States, 634 F.2d 521, 525 (Ct. Cl.


1980)). Here, the federal circuit court drew adistinction between “unauthorized” conduct andauthorized conduct, but nonetheless unlawful,noting that “[m]erely because a governmentagent’s conduct is unlawful does not mean that it isunauthorized.” Del-Rio Drilling Programs, Inc. v.United States, 146 F.3d at 1362. For example, adistrict court may later determine the United StatesArmy Corps of Engineers’ denial of a Clean WaterSection 404 permit application to have beenarbitrary, capricious, or an abuse of discretion. Nonetheless, the government action is“authorized,” i.e., the government congressionallyempowered the corps to grant or deny Section 404permits.

Need for a Compensable Property InterestThe government must make a threshold inquiry

in any takings case whether the plaintiff possessesa compensable property interest in that which healleges has been taken. The limitation on theexercise of property rights must be one which"inhere[s] in the title itself, in the restrictions thatbackground principles of the State's law ofproperty and nuisance already place upon landownership." Lucas v. South Carolina CoastalCouncil, 505 U.S. 1003, 1029 (1992). Thus, "apre-existing limitation upon the landowner's title"does not require compensation for its exercisewhen that limitation does "no more than duplicatethe result that could have been achieved in thecourts — by adjacent landowners (or otheruniquely affected persons) under the State's law ofprivate nuisance, or by the State under itscomplementary power to abate nuisances ...." Id. Thus, though the regulatory action "may well havethe effect of eliminating the land's onlyeconomically productive use, [it is not a taking if]it does not proscribe a productive use that waspreviously permissible under relevant property andnuisance principles." Id. at 1029-30. In analyzinga governmental action that allegedly interferes withan owner’s land use, there can be no compensableinterference if such land use was not permitted atthe time the owner took title to the property. M &J Coal Co. v. United States, 47 F.3d 1148, 1153 (Fed. Cir. 1995).

The Special Nature of Physical TakingsWhen there has been a physical occupation, or

direct physical intrusion of property, the generalrule is that such an intrusion, despite size or natureof impact, effects a taking. Lucas v. SouthCarolina Coastal Council, 505 U.S. at 1028; see,e.g., Loretto v. Teleprompter Manhattan CATBCorp., 458 U.S. at 436; Preseault v. UnitedStates, 100 F.3d 1525, 1550-51 (Fed. Cir.1996); Hendler v. United States, 952 F.2d1364, 1378 (Fed. Cir. 1991). This istrue despite the public benefit or interest served. Lucas v. South Carolina Coastal Council, 505U.S. at 1028.

The Question of RipenessBefore a regulatory takings claim can be

litigated, a plaintiff must establish that his claim isripe. In Agins v. City of Tiburon, 447 U.S. 255(1980), the Supreme Court declined to reach themerits of an as-applied regulatory taking claim,finding instead, that the claim was not ripe. There,the court held that landowners, who challengedzoning ordinances restricting the number of housesthey could build on their property, needed tosubmit first, and have denied, a plan fordevelopment of their property. Id. at 260. Subsequent Supreme Court case law clearlyestablished the need for the administrative agencyto arrive at a final, definitive position regardinghow the challenged regulation will apply to theparticular land at issue, before an as-appliedregulatory taking claim would be ripe. MacDonald, Sommer & Frates v. Yolo County,477 U.S. 340, 349 (1986); Williamson CountyRegional Planning Comm’n v. Hamilton Bank ofJohnson City, 473 U.S. 172, 193 (1985).

Facial, as opposed to as-applied, challenges togovernmental actions are generally ripe themoment the challenged law is placed into effect,but nonetheless face an “uphill battle.” KeystoneBituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 495 (1987). For example, it is alwaysdifficult to show that the mere enactment oflegislation has deprived an owner of alleconomically viable use of his property. Hodel v. Virginia Surface Mining & Reclamation Ass’n,Inc., 452 U.S. 264, 297 (1981).

The Supreme Court’s most recent discussionof ripeness in a regulatory takings case is Suitumv. Tahoe Regional Planning Agency, 520 U.S. 725, (1997). There, the Court found that theplaintiff had received a final agency decisionregarding the application of the regulations to herproperty, and her claim was ripe for decision. Id. at 743. However, in Heck & Assoc., Inc. v. United States, 134 F. 3d 1468 (Fed Cir 1998), theFederal Circuit found that a Clean Water ActSection 404 permit, which was withdrawn fromactive status pending plaintiff’s submission of astate water quality certificate, was not ripe. Id at1472.

Merely Requiring a Plaintiff to Apply for aPermit Does Not Establish a Taking

The Supreme Court has recently noted that aparty challenging governmental action as anunconstitutional taking bears a substantial burden. Eastern Enters. v. Apfel, 524 U.S. 498, (1998)(citing United States v. Sperry Corp., 493 U.S. 52, 60 (1989)). This is because governmentregulation often “curtails some potential for the useor economic exploitation of private property.” Andrus v. Allard, 444 U.S. 51, 65 (1979). Thus,“not every destruction or injury to property bygovernmental action has been held to be a ‘taking’in the constitutional sense.” Armstrong v. UnitedStates, 364 U.S. at 48. Nonetheless, regulatoryaction which "goes too far" will be found a taking. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,415 (1922).

The mere requirement that an individual applyfor a permit or other permission does not establisha taking. United States v. Riverside BayviewHomes, Inc., 474 U.S. at 127. This is because“[a] requirement that a person obtain a permitbefore engaging in a certain use of his or herproperty does not itself ‘take’ the property in anysense: after all, the very existence of a permitsystem implies that permission may be granted....” Id. at 126-27. Thus a plaintiff must apply forpermission and have that permission denied to

ripen his claim, unless resorting to that procedurewould prove futile. MacDonald, Sommer &Frates v. Yolo County, 477 U.S.at350 n.9. Application of the futility exception,however, as it has become known, is notappropriate where the property owner has not yetapplied to engage in the proposed use. Greenbrierv. United States, 40 Fed. Cl 689, 702-03 (1998). Further, “[a] plaintiff cannot plead futilitywhenever faced with long odds or demandingprocedural requirements.” Heck & Assoc. v.United States, 37 Fed. Cl. 245, 252 (1997), aff’d,134 F.3d 1468 (Fed. Cir. 1998).

Limited Applicability of the Agins TestWhen a plaintiff challenges a governmental

action as a taking by virtue of its mere enactmentor placement into effect, this is considered a“facial” challenge. In such a situation, theSupreme Court has in the past looked to whetherthe regulation (1) fails substantially to advance alegitimate state interest, or (2) denies an ownereconomically viable use of his land, to decidewhether there has been a taking. Nollan v. California Coastal Comm'n, 483 U.S. 825, 834(1987) (citing Agins v. City of Tiburon, 447 U.S. at 260). Recent Supreme Court jurisprudencesuggests, however, that the court may soonreevaluate the continued viability of the first factorin assessing whether there has been a compensabletaking. In any case, it must be noted that adifferent analysis applies to the evaluation ofwhether the application of a particular law orregulation on a plaintiff effects a taking, asdiscussed below.

Evaluation of When Governmental ActionCauses a Regulatory Taking

When a plaintiff challenges a regulation asapplied, the Supreme Court has explained that theinquiry does not lend itself to any “set formula”and thus the determination is essentially ad hoc andfact intensive. Eastern Enters. v. Apfel, 524U.S. 498, (1998), (citing Kaiser Aetna v.


United States, 444 U.S. 164, 175 (1979)). Instead, the court has

identified several factors ... that haveparticular significance: the economic impact ofthe regulation, its interference with reasonableinvestment backed expectations, and thecharacter of the governmental action.

Eastern Enters. v. Apfel, 524 U.S. 498, (1998),(citing Kaiser Aetna v. United States, 444 U.S. at175); see also Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224-25 (1986).

In evaluating whether there has been aregulatory taking, a court’s analysis focusesprimarily on the regulation’s economic impact onthe plaintiff and the extent to which the regulationinterferes with reasonable investment-backedexpectations. To establish a taking, a plaintiffmust show that the regulation denies alleconomically viable use of his property. BassEnters. Prod. Co. v. United States, 133 F.3d at895 (citing Lucas v. South Carolina CoastalCouncil, 505 U.S. at 1030-31). However,"[g]overnment hardly could go on if, to someextent, values incident to property could not bediminished without paying for every such changein the general law." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 413. Thus, the merediminution in property value, standing alone, doesnot establish a taking. Concrete Pipe & Prods. ofCalifornia, Inc. v. Construction Laborers PensionTrust, 508 U.S. 602, 645 (1993); Penn Cent.Transp. Co. v. New York City, 438 U.S. at 131. Likewise, denial of the highest and best use, or themost profitable use, does not constitute a taking. Florida Rock Indus., Inc. v. United States, 791F.2d 893, 901 (Fed. Cir. 1989). Nor does the facta property owner is not permitted to reap as great afinancial return from his property, as he mighthave hoped, by itself, establish a taking. See, e.g.,MacDonald, Sommer & Frates v. Yolo County,477 U.S. at 353 n.9.

When there is a reciprocity of advantage, asfrequently occurs in a zoning case, the claim thatthe government has taken private property is notcompelling: “the claimant has in a sense beencompensated by the public program adjusting the

benefits and burdens of economic life to promotethe common good.” Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1570 (Fed. Cir. 1994) (citing Penn Cent. Transp. Co. v.New York City, 438 U.S. at 124); see also Agins v.City of Tiburon, 447 U.S. at 262-63.

In determining whether there has been aregulatory taking, courts also evaluate the extent towhich the challenged governmental action hasinterfered with the reasonable investment-backedexpectations of the property owner. KeystoneBituminous Coal Ass'n v. DeBenedictis, 480 U.S. at 495; Connolly v. Pension Benefit Guar. Corp.,475 U.S. at 227. The court has noted, however,than an investment-backed expectation must bereasonable — it “must be more than a ‘unilateralexpectation or an abstract need.’” Ruckelshaus v. Monsanto Co., 467 U.S. at 1005-06 (quotingWebb’s Fabulous Pharmacies, Inc. v. Beckwith,449 U.S. 155, 161 (1980)).

Thus, a successful plaintiff must be able todemonstrate that he purchased his property “inreliance on the non-existence of the challengedregulation.” Creppel v. United States, 41 F.3d627, 632 (Fed. Cir. 1994). This is true even wherethe challenged regulation has effectively eliminatedall viable economic use. Good v. United States,189 F.3d 1355 (Fed. Cir. 1999). Where aplaintiff was aware of the need to obtain regulatoryapproval to develop his land, he cannot claim ataking when the previously existing regulatoryenvironment becomes more stringent. Id. at 1362,citing Deltona Corp. v. United States, 657 F.2d1184, 1193 (Ct. Cl. 1981), cert. denied, 455 U.S.1017 (1982).

The Measure of Just CompensationOnce the court establishes a taking, it makes a

determination of compensation. The propermeasure of just compensation is that which willput the owner “in as good a position pecuniarily ashe would have occupied if his property had notbeen taken.” Yuba Natural Resources, Inc. v. United States, 821 F.2d 638, 640 (Fed. Cir. 1987)(quoting United States v. Miller, 317 U.S. 369,373 (1943)). Just compensation for a permanenttaking is generally the fair market value of theproperty taken. Id. Just compensation for a

temporary taking is determined with reference tothe fair market rental value of the property interesttaken. Bass Enters. Prod. Co. v. United States,133 F.3d at 895. In either a temporary orpermanent taking, a successful litigant is entitled tothe reimbursement of those reasonable costs andexpenses of litigation, including reasonableattorney, appraisal, and engineering fees, which thelitigant incurred because of the litigation. UniformRelocation Assistance and Real PropertyAcquisition Act, 42 U.S.C. § 4654.


General Stream Adjudications:Overview of the Process and IssuesDavid W. HarderAttorney, Indian Resources SectionEnvironment and Natural Resources Division

K. Jack HaugrudDeputy Chief, General Litigation SectionEnvironment and Natural Resources Division

In virtually every state west of the 100thmeridian, water is scarce, but litigation concerningit is not. Much of this litigation takes place in“general stream adjudications,” in which the rightto use water from a given river system is judiciallydetermined. While some of these adjudications aresmall, others are huge, complex actions involvingthousands of parties and years of litigation. Forexample, the Snake River Basin adjudication inIdaho, beginning in 1987, involves more than100,000 claims to water, and is expected to last atleast another ten years. A synopsis of the majorongoing adjudications in the western states isattached to the end of this article.

State law generally governs the allocation anddistribution of water. The arid states of theAmerican West follow the “prior appropriation”doctrine. Under this doctrine, an individual canobtain a protected property right to use a certainquantity of water by placing the water to a“beneficial use,” such as irrigation. When there isnot enough water for all users, the shortage is notshared on a pro rata basis. Water is allocatedunder a principle of “first in time is first in right.” In other words, “senior” water right holders (i.e.,those who were the first to use the water) areentitled to use their entire amount of water before“junior” holders get any. The date used to decideone’s position in this hierarchy is called the“priority date.”

To administer water rights under the priorappropriation doctrine, knowing everyone’s rightsto a given river system is essential. Withoutknowing the priority date and quantity of water

being used by each individual, it is impossible toknow, in times of shortage, who to cut off and whoto allow the use of their full water share. Unfortunately, very few comprehensive listingsexist of valid water rights for western riversystems. With ever increasing demands on waterby growing populations, the need forcomprehensive listings of water rights becomesincreasingly important, and general streamadjudications are designed to provide them.

A general stream adjudication results in ajudicial decree of all water rights to a given riversystem. Although adjudications involving theUnited States may occasionally be in federal court,they are usually state court proceedings. TheUnited States is joined as a defendant in theseproceedings pursuant to the McCarranAmendment, 43 U.S.C. § 666, which waives theUnited States’ sovereign immunity “for theadjudication of rights to the use of water of a riversystem or other source.”

Although each state’s process is different,typically the adjudication begins with each wateruser making a claim for a water right. The state’swater resource agency then examines these claims,and files recommendations with the state court onwhether, and to what extent, the claimed rightsshould be decreed. Water right claimants can fileobjections to the recommendations made by theagency for their own claim or the claim of others. The agency treats each objected-to claim as aseparate “sub-case,” and will resolve the issuemuch like any other civil litigation. Eventually,after ruling on each claim, the court issues ajudicial decree listing all of the water rights. Foreach right, the court will decree the quantity ofwater usage, the purpose of use, the season of use,the place of use, the place of diversion, and thepriority date.

The United States plays a crucial role in theseadjudications because it files some of the largestclaims on behalf of both Indian tribes and federal

agencies. Agencies with large land holdings orwater resource duties in the adjudicated watershedwill be major claimants, but all agencies usingwater must file claims. Agencies that often havesignificant claims include the Bureau of LandManagement, the Bureau of Reclamation, theDepartment of Defense, the Fish and WildlifeService, the Forest Service, and the National ParkService.

The United States’ claims are particularlycontroversial because many of them are “reserved”water rights not based on state law. Under thefederal reserved rights doctrine, when the UnitedStates reserves land from the public domain for afederal purpose, it also, by implication, reservessufficient water to accomplish the reservation’spurposes. United States v. New Mexico, 438 U.S.696 (1978); Cappaert v. United States, 426 U.S.128 (1976); Winters v. United States, 207 U.S.564 (1908). See also Montana v. ConfederatedSalish & Kootenai Tribes, 712 P.2d 754 (Mont.1985). Under this doctrine, the quantity reservedis not tied to historical beneficial use (as state law-based rights are), but to the amount of waterneeded to fulfill the purposes of the reservation.

Reserved rights differ from state law-basedrights in a number of other important ways. Forexample, under state law, the priority date of awater right is essentially the date the water wasfirst put to a beneficial use. In contrast, thepriority date of a reserved right is the date of thecreation of the federal reservation. For some typesof Indian reserved water rights, like those tosupport fishing rights created by a treaty, thepriority date is based on the tribe’s longstandinguse of the water, resulting in a “time immemorial”priority date.

Moreover, federal reserved rights are notsubject to state law rules on nonuse. If a statewater-right-holder does not use a water right for aperiod of time, five years for example, the waterright is usually lost under a forfeiture statute. Incontrast, a nonused federal right created byimplication in a 1864 reservation may still be

valid. Finally, the federal or Indian reserved rightincludes water needed for present and future uses. A private water claimant can generally claim onlycurrent uses in the adjudication. For a more in-depth discussion of reserved rights, consult 4Waters and Water Rights, Reserved Water Rights(Robert E. Beck, ed., 1996 replacement volume to1991 ed.).

Although reserved water rights have beenrecognized since 1908 for Indian reservations, andsince 1963 for other federal agencies, see Arizonav. California, 373 U.S. 546 (1963), manyfundamental issues remain unresolved concerningthe existence and scope of reserved rights. Thefollowing subsections highlight some controversialissues being litigated with respect to Indianreserved rights and those of federal agencies.

Important Indian Water Rights IssuesThe Department, through the Indian Resources

Section of the Environment Division, representsthe Bureau of Indian Affairs (BIA) of theDepartment of the Interior in water adjudicationsthroughout the western United States. The BIA isthe trustee for Indian natural resources, includingwater rights, and makes water right claims for thebenefit of tribes in adjudications. The BIA objectsto the water right claims of other entities thatwould conflict with the claimed tribal water right. Significant Indian water rights issues include thefollowing:

a. Practicably Irrigable Acres (PIA) — Atribe’s agricultural water right is measured by thePIA standard from Arizona v. California, 373 U.S. 546, 600-01 (1963). The PIA testdetermines whether land can be irrigated foragriculture and if that enterprise would beeconomically feasible. In the New Mexico Aamodtadjudication, the Department litigated the correctbasis for economic analysis of the future irrigationproject for the Nambe Pueblo. The state andprivate entities wanted a national focus, requiringthe irrigation project be feasible as a part of thenational economy, while both the United States and


the Pueblo contended that the economic analysisfocus only on the specific project. The SpecialMaster made an adverse preliminary ruling underF.R.C.P.(e)(5) in mid-1999.

b. Instream Flow Claims — Water rights havebeen recognized to protect tribal fishing, hunting,and gathering rights. United States v. Adair, 723F.2d 1394 (9th Cir. 1983). The Department, withthe Klammath Tribes of Oregon and the Nez PerceTribe of Idaho, is litigating how much water isappropriate to provide habitat for fish, game, andplants important to each tribe. These claimsinclude the contention that relatively large flowsare needed to keep the stream channel in propershape and to maintain the riparian corridoradjacent to the stream. The United States isactively seeking to resolve these claims throughnegotiation in both the Klammath and Snake RiverBasin adjudications.

c. Groundwater — An important componentof Indian reserved water rights is groundwater. The courts have not uniformly acknowledged theexistence of reserved groundwater rights for eitherfederal or Indian lands. In the Gila Riveradjudication, the Arizona Supreme Court recentlyheard arguments on this point. In several NewMexico adjudications, the inclusion ofgroundwater within the Indian reserved right isalso being litigated. In many areas, groundwater,or storage of surface flows in aquifers, is often animportant component to settle the tribal right, asthe parties look for water to mitigate surface watershortages when tribal and federal rights are fullyexercised.

d. Operation of Federal Facilities — Indianreservations are often adjacent to or significantlyaffected by the operation of other federal facilities. For example, dams operated by the Army Corps ofEngineers or the Bureau of Reclamation (BOR)can affect tribal fisheries and the water rightsassociated with those fisheries. In litigationconcerning tribal water rights along the KlamathRiver in Oregon and California, a federal court inOregon recognized BOR’s obligation to providewater for senior, but unadjudicated, tribal instreamwater rights, ahead of the contractual rights ofBOR Project irrigators. Klamath Water UsersAssoc. v. Patterson, 191 F.3d 1115 (9th Cir.

1999). Similarly, federal and private dams on theSnake River have adversely affected salmon reliedon by the Nez Perce Tribe, and water from storagein BOR projects is necessary to help fish passage.

e. State Water Permitting and UnadjudicatedTribal Water Rights — The Flathead Tribes ofMontana initiated an original action in theMontana Supreme Court in 1998. The suitchallenges whether a state agency has authority toissue new water right permits when the tribes’senior water right is not yet quantified. The tribescontend that the state agency could not determinewhether water is available to allocate to new usersuntil a complete adjudication or settlementdetermines the tribes’ water right. The matter wasargued to the Montana Supreme Court in early1999 but it has issued no ruling.

f. Settlement of Tribal Water Right Claims –– Tribal water right claims are oftensettled. The Department plays a role in claimnegotiation as a part of the Interior Department’snegotiation team. The team generally settles thematters on terms that both allow the affected tribeto use its water right effectively, and maintainmany existing private water uses. Since there israrely surplus water in a watershed, the UnitedStates typically provides the bulk of the fundingfor water projects or environmental restoration. This smooths the transition from partial exercise tothe complete use of the tribal water right. TheInterior Department has renewed its commitmentto settle Indian water problems, and we areactively helping all settlement efforts.

Important Non-Tribal Reserved Right Issues The attorneys in the General Litigation Section

of the Environment Division litigate the reservedwater rights of federal agencies. A description ofa few of the most controversial issues follows.

a. Wilderness Water Rights — Congressestablished the wilderness preservation system in1964 with the enactment of the Wilderness Act, 16U.S.C. §§ 1131-36. Congress has now designatedmore than 90 million acres of land as wilderness,but in virtually every case, Congress did not statewhat, if any, water rights exist for these areas. Recently, in the Snake River Basin adjudication inIdaho, the Idaho Supreme Court held that

wilderness water rights do exist, and that thequantity reserved is all unappropriated flow at thedate of designation. The State of Idaho hasrequested the court to reconsider its opinion.

b. Wild and Scenic River Water Rights — Congress enacted the Wild and ScenicRivers Act in 1968. 16 U.S.C. § 1271 et seq. Thestatute has a negatively worded reservation ofwater rights: “Designation of any stream . . . shall not be construed as a reservation of thewaters of such stream for purposes other thanthose specified in this Act, or in quantities greaterthan necessary to accomplish these purposes.” 16U.S.C. § 1284(c). Until recently, no judicialdecision explicitly ruled on the meaning of thisprovision. On July 24, 1998, a state district courtin Idaho ruled that this provision is an expressreservation of water, but that the United Statesmust establish the precise quantity to ensure that itis the minimum amount necessary for eachdesignated river segment. This ruling is presentlyon appeal to the Idaho Supreme Court.

c. Stock Water Reserves — In 1926, thePresident issued an executive order entitled “PublicWater Reserve No. 107” (PWR 107). The orderreserved all land within one quarter mile of “everyspring or water hole located on unsurveyed publicland” so that the public could use the springs towater livestock. Although the Colorado SupremeCourt summarily ruled that this provision reservedwater, United States v. City & County of Denver,656 P.2d 1, 31 (Colo. 1982), other states haverefused to recognize the validity of thesereservations. Last year, the Idaho Supreme Courtreversed a lower court decision and held that“PWR 107 is a valid basis for a federal reservedwater right for the limited purpose of stockwatering.” United States v. Idaho, 959 P.2d 449,453 (Idaho 1998).

As this brief overview suggests, litigation of federal water rights is pervasive across the western United States. Given the uncertainty in thelaw, it is also expensive and time consuming. Negotiated resolutions are more efficient than

litigation, and routinely result in better outcomesfor all parties concerned. In the past few years, wehave had notable successes in achieving negotiatedagreements for both Indian and Non-Indianwater rights. If we can build on these successes,we can make obsolete Mark Twain’s still felicitousobservation that, in the West, “Whisky is fordrinking and water is for fighting.”

An Overview of Adjudications Involving theUnited StatesArizona:

The Gila River Adjudication and the LittleColorado River Adjudication started in the1970s and are continuing.

California:A few water matters are ongoing, including theFallbrook Adjudication.

Colorado:A general adjudication of all waters within thestate began in the 1960s. The state is carvedinto seven water divisions, with a district courtpresiding over each division. The process isunique and is essentially a permanent, ongoingadjudication.

Idaho:The Snake River Basin Adjudication began in1987 and involves more than 80% of thestate’s water resources and more than 100,000claims.

Montana:A statewide adjudication began in 1979 andinvolves more than 200,000 claims. Theclaims for several federal agencies and threetribes have been settled.

New Mexico:Many general stream adjudications areongoing in both state and federal court. Inaddition, federal law suits are ongoingconcerning the Rio Grande Compact and theRio Grande Project.

Nevada:There are approximately ten ongoing statecourt adjudications. Additionally, there is the


ongoing federal water rights adjudication ofthe Walker River and its tributaries.

Oregon:The Klamath Basin Adjudication is ongoing instate court.

Texas:A suit has been initiated to adjudicate federalwater rights on the Rio Grande.

Utah:The Virgin River Adjudication was recentlycompleted following a comprehensive waterrights settlement. There are many otheradjudications filed in state court.

Wyoming:The Big Horn River General Adjudication hasbeen ongoing for more than twenty years andthe Indian phase is now complete. ò

RS 2477 Litigation: StatutoryBackground and Litigation IssuesClaire E. DouthitFormer Trial Attorney, General Litigation SectionEnvironment and Natural Resources Division

Margo D. MillerFormer Trial Attorney, General Litigation SectionEnvironment and Natural Resources Division

I. BackgroundIn 1866, Congress enacted an innocuous-

sounding provision granting rights-of-wayacross federal lands:

The right-of-way for the construction ofhighways over public lands, not reservedfor public uses, is hereby granted.

Codified as Section 2477 of the Revised Statutes,“RS 2477" allowed establishment of manyhighways across the public domain of theUnited States. Ironically, the real controversiescreated by the statute did not arise until it wasrepealed in 1976. See Pub. L. No. 94-579, 90Stat. 2744 (1976) (repealing many right-of-waygrants).

The 1976 repeal did not affect rights-of-wayestablished before that year. By that time, thousands of roads and trails crossed federal land. Because no procedures had ever been created todetermine and document RS 2477 rights-of-way,there was no way to decide which of these roadsfell within the right-of-way grant of RS 2477. With ever increasing momentum after 1976,counties and other entities (especially in Utah andAlaska), began asserting rights under RS 2477 toall kinds of roads and trails crossing federal land. At present, Utah alone has more than 5,000 claims

to RS 2477 rights-of-way, and the United Statesrecognizes only ten of these claims.

To resolve these controversies, anadministrative process for making and determiningclaims would be immensely helpful. Unfortunately, such a process is not likely to existany time soon.

In response to a 1996 Interior proposal tocreate a claims process, Congress placed amoratorium on “developing, promulgating, andthereafter implementing a rule concerning rights-of-way under section 2477 of the RevisedStatutes,” unless expressly authorized by an Act ofCongress. FY 1996 Interior Appropriations Act,Pub. L. 104-134, § 110, 110 Stat. 1321-177(1996). Although Congress lifted this moratoriumthe following year, regulations can be implementedonly if “expressly authorized by an Act ofCongress.” FY 1997 Interior Appropriations Act,Pub. L. 104-208, § 108, 110 Stat. 3009 (1996). Because of this Congressional action, the Secretaryof Interior issued an “Interim Departmental Policyon Revised Statute 2477,” which is still in effect,and prevents the agency from making right-of-waydeterminations, absent compelling circumstances. This policy states: “Until final rules are effective,I have instructed the Bureau of Land Managementto defer any processing of R.S. 2477 assertionsexcept in cases where there is demonstrated,compelling, and immediate need to make suchdeterminations.”

With no administrative process to resolvedisputes over RS 2477, the issues necessarily havebecome the focus of judicial actions. RS 2477litigation commonly arises in two contexts:(1) a county or other claimant sues to quiet title; or(2) a county or other claimant asserts its rightsthrough some action, such as bulldozing in a


national park. Under either scenario, a need fornational coordination exists because RS 2477 lawis still developing, with the meaning of most keywords still in dispute.

II. Issues that Arise in RS 2477 LitigationA few of the key issues that arise in RS 2477litigation are highlighted below.

A. Does an RS 2477 Right-of-Way Exist?The threshold issue in any law suit will be whetheran RS 2477 right-of-way exists. This issue mayarise in a quiet title action or as a defense to atrespass action. Whether a valid right-of-wayexists is more complicated than the simple terms ofthe grant would suggest because the statuteprovides no definition of its terms. What is thedefinition of a "highway"? What constitutes"construction"? Which public lands are "notreserved" for public uses? What law, state orfederal, should answer these questions? The law isnot settled with respect to any of these questions.

Many state cases address establishment ofhighways pursuant to RS 2477. Most state casesinvolve only non-federal litigants and, therefore,are not dispositive on federal RS 2477 issues. However, the few federal cases that addressexistence issues, provide no clear judicialprecedents, because each focuses on only one termin the statute. See, e.g., Humboldt County v. United States, 684 F.2d 1276 (9th Cir. 1982)(discusses only the meaning of the term “publiclands,” assumes a county participated in“construction,” and assumes that road was a“highway”); Wilderness Soc’y v. Morton, 479F.2d 842 (D.C. Cir. 1973) (discusses only themeaning of the term “highway”).

B. What Is the Regulatory Authority of theUnited States?

When a valid right-of-way exists, the issuegenerally will be what activities within the right-of-way can be, or have been, regulated by theUnited States, and what regulatory authority canbe exercised over expansion or modification of theright-of-way. Can a federal agency limit the use ofa right-of-way pursuant to its statutory duties toprotect the federal resource? Can a federal agency

direct the holder of an RS 2477 right-of-way toexercise its rights in a particular way? Both theNinth and Tenth Circuits have held that agencieshave the authority to regulate within the scope ofRS 2477 rights-of-way. United States v. Vogler,859 F.2d 638, 642 (9th Cir. 1988); Clouser v.Espy, 42 F.3d 1522, 1538 (9th Cir. 1994); SierraClub v. Hodel, 848 F.2d 1068 (10th Cir. 1988);see also City & County of Denver v. Bergland,695 F.2d 465, 468, 482 (10th Cir. 1982) (Interiorhas authority to regulate a 1905 Act easement);United States v. Jenks (Jenks I), 22 F.3d 1513,1518 (10th Cir. 1994) (holding that evenif defendant has patent or common law easementrights, he must apply for a special use permit). Itis unsettled, however, whether, lacking specificregulations, federal agencies can restrict activitieswithin a right-of-way. See Southern UtahWilderness Alliance et. al v. Bureau of LandManagement et. al (SUWA v. BLM), 2:96-CV-0836-S, slip op. at 17 n. 7 (D. Utah Oct. 8, 1997)(Memorandum Decision Addressing the UnitedStates’ Motion for Partial Summary Judgment andMotion to Strike Kane County’s Fourth Defense)(reasoning “absent defining statutes or regulations,it is not for the court to declare how the BLM is tocarry out its duties, or to create regulationsjudicially that comport with the BLM’s view of itsregulatory role in the present dispute”). Fortunately, many agencies have promulgatedregulations that apply to roads across the landsthey manage. See, e.g., 36 C.F.R. § 261.10(prohibiting construction of roads on forest systemlands without authorization); 36 C.F.R § 5.7 (prohibiting construction or roadsthrough National Parks without writtenauthorization). Few of these regulations, however,have been subject to RS 2477 litigation, sowhether they constitute the exercise of regulatoryauthority within RS 2477 rights-of-way isstill an unsettled question. The Congressionalmoratorium further complicates this issue,described above, on developing, promulgating, orimplementing any rule or regulation unlessexpressly authorized by an Act of Congress.

C. What Is the Scope of an RS 2477 Right-of-Way?

It is also an unsettled question whether thescope of a valid RS 2477 right-of-way must bedetermined before a court finding that an RS 2477right-of-way holder violated federal regulations. At least one court has suggested that the federalland management agency’s authority to regulate anRS 2477 right-of-way is directly related to whetherthe proposed activity is within the scope of theright-of-way. See United States v. GarfieldCounty, No. 2:29-CV-0450-J (D. Utah); see alsoSUWA v. BLM, No. 2:96-CV-0836-S, slip op. at (D.Utah October 7, 1997) (Federal Governmenthas the authority to regulate the use of valid rights-of-way, but without regulations, “as long as KaneCounty stays within its right-of-way, . . . BLMauthorization is not required” before the right-of-way is expanded or modified).

If scope becomes an issue, the initial task is todetermine the law to apply. In the Tenth Circuit,state law determines the scope of an RS 2477right-of-way. Sierra Club v. Hodel, 848 F.2d at1083. Attorneys in the General Litigation Section,Environment and Natural Resources Division(ENRD) have completed much of the researchconcerning the state highway rights-of-wayscope standards in individual states, in the TenthCircuit. We encourage individuals to contact theseattorneys before embarking on a similar effort. Aswith most RS 2477 issues, however, the scopestandards to apply in each state are not entirelysettled.

D. Additional IssuesWhen a county or claimant asserts its rights

through some action, such as bulldozing a road ina national park or forest, the fact-intensive issuesoften expand to include the following: (1) What,when, where, why, and how did the specificground-disturbing activity occur? (2) Was thespecific ground disturbing activity the type thatrequired authorization by the federal agency? (3) Ifso, did the owner have such authorization for thatspecific activity? and (4) If the activity wasunauthorized, how was the resource damaged?

These cases quickly demand large expenditures ofattorney time and resources.

III. Additional ResourcesAttorneys in the General Litigation Section of

the ENRD have handled or monitored most of theRS 2477 cases over the past twenty years. Thefollowing attorneys can provide substantialassistance: K. Jack Haugrud, Assistant Chief (202-305-0438), Bruce Landon (907-271-5452),Allison Rumsey (202-514-0750), and MargoMiller (202-305-0449). Because of the unsettlednature of the legal issues, they are also attemptingto provide national coordination. In addition tothese human resources, a comprehensive anduseful guide to understanding the complexities ofissues surrounding RS 2477 rights-of-way is TheUnited States Department of Interior Report toCongress on R.S. 2477: The History andManagement of R.S. 2477 Rights-of-Way Claimson Federal and Other Lands (June 1993),submitted to the Chairman of the Subcommittee onInterior, Committee on Appropriations, House ofRepresentatives.ò


Responsibilities and Activities of theTitle UnitLewis M. BaylorAssistant Chief, Land Acquisition SectionEnvironment and Natural Resources Division

The Title Unit, Land Acquisition Section,Environment and Natural Resources Division(ENRD), has been delegated the task of fulfillingseveral statutory responsibilities of the AttorneyGeneral relating to land, including:

• the review and approval of the sufficiency oftitles for land or interests in land to beacquired by the Federal Government (40U.S.C. § 255),

• the approval and preparation of easements tobe granted over lands administered by theDepartment of Justice and its components (40U.S.C. § 319), and

• the approval of conveyances of land from thegovernment for airport purposes (49 U.S.C. § 47125).

The Title Unit also oversees and administersthe Attorney General’s title regulations (citedbelow). It also guides the review of title by elevenfederal agencies, delegated their authority by theAttorney General. The Title Unit participatesdirectly in condemnation litigation when ownershipor boundaries are in question, and it serves as aresource to assist attorneys and various federalagencies in litigation involving land, in structuringnegotiated real estate transactions, and inaddressing questions relating to title and estates inreal property.

Statutory and Delegated Authority:Congress placed the responsibility for the

review of title in federal land acquisitions on theAttorney General by virtue of 40 U.S.C. § 255. This statute reads, in part, as follows: "Unless theAttorney General gives prior written approval ofthe sufficiency of the title to land for the purpose

for which the property is being acquired by theUnited States, public money may not be expendedfor the purchase of the land or any interesttherein."

This wording is in a statute that dates back to1841. Until 1970, the Attorney General, actingthrough the Land Acquisition Section’s Title Unit,reviewed titles for essentially all federal landacquisitions. In 1970, the statute was revised toallow the Attorney General to delegate to otherdepartments and agencies responsibility, "subjectto his general supervision and in accordance withregulations promulgated by him."

Authority has been delegated to thegovernment’s principal land acquiring agencies;

Department of Agriculture,Department of the Army,Department of Energy,Department of the Interior,Department of the Navy,Department of Transportation,Department of Veterans Affairs,General Services Administration,International Boundary and Water

Commission, andUnited States Postal Service (subsequentlyexcluded by statute).These agencies may, without reference to the

Department of Justice, review and approve titles toland or interests they are acquiring, subject tocompliance with the Attorney General’s titleregulations (see item 3 below). All other federalagencies, unless they have been exempted from theeffect of the statute, submit requests for the reviewof titles directly to the Department of Justice.

Within the Department of Justice, the AttorneyGeneral has delegated her authority andresponsibility to review titles and promulgaterelated regulations to the Assistant AttorneyGeneral, Environment and Natural ResourcesDivision (Order No. 440-70 of the AttorneyGeneral, dated October 2, 1970, and codified at 28

C.F.R. §0.65(c) and 0.66). She, in turn, hasdelegated her title review authority andresponsibility to the chief and assistant chiefs ofthe Land Acquisition Section, and the chief of theTitle Unit in the Land Acquisition Section (ENRDDirective No. 23-98).

Primary References:The Department of Justice has developed four

reference documents to guide and regulateattorneys who review titles under delegatedauthority from the Attorney General. Thesereference documents are:

1. Standards for the Preparation of TitleEvidence in Land Acquisitions by theUnited States, 1970, as amended by a February26, 1992 Memorandum titled Introduction to theALTA U.S. Policy - September 28, 1991(TheStandards);

2. A Procedural Guide for the Acquisition ofReal Property by Governmental Agencies, 1972,(The Procedural Guide);

3. Regulations of the Attorney General,promulgated in accordance with the provisions ofPublic Law 91-393 approved September 1, 1970,84 Stat. 835 [40 U.S.C. §255], An Act to AmendSection 355 of the Revised Statutes, as amended,Concerning Approval by the Attorney General ofthe Title to Lands Acquired for and on Behalf ofthe United States and for Other Purposes (TheAttorney General’s title regulations); and

4. The List of Approved Attorneys,Abstracters, and Title Companies (November 10, 1998).

Copies of these documents have beendistributed to federal agencies for their use, andcopies may be obtained from the Title Unit, LandAcquisition Section. Efforts are underway to placethem on the Department of Justice’s web page.

Title Unit Responsibilities:Title reviews:

The Title Unit administers the AttorneyGeneral’s title regulations by providing agencyguidance, assisting in the preparation of requestsfor waivers in specific cases, and in updating theregulations. In 1991, the Title Unit worked withthe American Land Title Association to develop anew form of title insurance policy for use by the government in all jurisdictions except Texas. Thispolicy replaced one originally adopted in 1963. Anew federal policy form for use in Texas has beenproposed but has not yet been adopted. A revisionof the Title Standards has also been drafted, and iscurrently being circulated within the Department ofJustice for comments.

Title reviews by the government serve thesame purpose as title reviews by any party whoacquires land or an interest in land — to assurethat the ownership of the land is as represented bythe seller/grantor, and that it is sufficient for theintended purpose. Whether the land or interest inland is being acquired by purchase, exchange,donation, in settlement of litigation, or otherwise, itis vital that the title records be examined and theproperty inspected to be certain that valid title isbeing acquired. In the case of acquisition bycondemnation, the title review serves a slightlydifferent purpose, which is to be sure that all ofthose having an interest in the land have beenidentified. This way the proper parties will be paidjust compensation for the land taken. Thedocuments that should be examined in a titlereview include: the agreement or contract to sell(donate, etc.) the land, proposed conveyancingdocuments, the title evidence, any surveys or plats,the description(s), and reports of physicalinspections of the property.

The scope and variety of the Title Unit’s titlereview work is revealed by a brief overview ofprojects:

The greatest volume of cases, in recent years,has come from the Federal EmergencyManagement Agency, which has acquiredhundreds of small, urban parcels located in floodplains across the nation. The Department of


Veterans Affairs has also been very active inacquiring land for cemeteries and medical centers. The unit has also been reviewing titles for prisonfacilities for the Bureau of Prisons, Border Patrolstations for the Immigration and NaturalizationService, and the fingerprint center in West Virginiafor the Federal Bureau of Investigation. TheBureau of Indian Affairs requests title reviews forland acquisitions by the United States in trust forvarious Indian tribes. The Department of Laborhas acquired or expanded a number of Job CorpsCenters. Titles have also been reviewed for federallaboratory sites, scientific facilities, radar sites,office buildings, and courthouses for agencies suchas the National Oceanic and AtmosphericAdministration, Federal Aviation Administration, Environmental Protection Agency, and GeneralServices Administration. Agencies as diverse asthe State Department, the Architect of the Capital, Bureau of Reclamation, Department of theTreasury, Department of the Army, andDepartment of the Navy have all requested titlereviews for multiple projects.

Easements:The Title Unit assists components of the

Department of Justice in granting easements overland they control. The unit reviews the proposal,and drafts the easement for signature by the Chief,Land Acquisition Section, Environment andNatural Resources Division. Most grants relate tocorrectional facilities of the Bureau of Prisons andto Border Patrol facilities of the Immigration andNaturalization Service. Some examples of the typeof easements granted are: a telephone line inCalifornia, a street widening in Florida, and sewerand water lines in Texas.

Easements over federal land may be granted bythe head of the agency having control of the land. This authority stems from 40 U.S.C. § 319. Easements are granted with or withoutconsideration and subject to such reservations,exceptions, limitations, benefits, burdens, terms, orconditions as the head of the agency deemsnecessary to protect the interest of theUnited States. Supervision and control of federalfacilities administered by all components of theDepartment of Justice, including those

administered by the Federal Bureau of Prisons, theImmigration and Naturalization Service, theFederal Bureau of Investigation, and the DrugEnforcement Agency, are vested in the AttorneyGeneral.

By virtue of the provisions of 5 U.S.C. §301 and 28 U.S.C. §§ 509, 510, and 28C.F.R. § 0.69, Order No. 736-77, 42 F.R. 38177,dated July 27, 1977, the Attorney Generaldelegated authority to make determinations andgrants of easements to the Assistant AttorneyGeneral in charge of the Environment and NaturalResources Division. She has further delegated thisauthority to the chief of the Land AcquisitionSection (ENRD Directive No. 26-95, issuedpursuant to 28 C.F.R. § 0.69b on October12, 1995). The Title Unit reviews requests for thegrant of easements, and drafts the easements forsignature by the chief of the Land AcquisitionSection. As a condition of granting the easement,the Department of Justice requires that the granteeagree to a set of standard stipulations.

Airport conveyances:Airport conveyances are made at the request of

a local government or entity for the creation orexpansion of an airport. Most requests relate topublic land administered by the Bureau of LandManagement, or to military land administered bythe Army, Navy, or Air Force; however, requestscan be made and granted as to any federal land. For example, a recent request for land next toWashington Dulles International Airport outsideWashington, D.C., related to land administered bythe National Oceanic and AtmosphericAdministration.

Pursuant to the Airport and AirwayImprovement Act of 1982, codified at 49 U.S.C. § 47125, requests can be made for landconveyances from the Federal Government forairport purposes. The Federal AviationAdministration coordinates such requests, and allsuch transfers require the Attorney General’sapproval. The Attorney General’s approvalauthority has been delegated to the AssistantAttorney General, Environment and NaturalResources Division (28 C.F.R. § 0.69b, Order No. 1069-84, 49 F.R. 39843, dated October 11, 1984),

and delegated to the chief of the Land AcquisitionSection (ENRD Directive No. 26-95, issuedpursuant to 28 C.F.R. § 0.69b on October 12,1995).

The Title Unit reviews the materials providedby the granting agency, including the deed orpatent to be issued, for legal sufficiency under theauthorizing statute and applicable local real estatelaw.

Litigation:Condemnation is sometimes used to acquire

land when the title is defective. In thesecircumstances, the acquiring agency may be unableto ascertain ownership, or ownership may be indispute. This occurs most frequently with lowvalue lands that the owners have ignored for manygenerations. It can, however, arise in othersettings, where the parcel in question is small, butits contributory value to an adjoining orsurrounding parcel is very significant. In suchcases, the United States has no interest in theoutcome of the determination of who owns theland, but it needs to have ownership determined sothat just compensation is paid to the right party. Ifthere is a dispute between two parties, activelyasserting conflicting claims of ownership, theUnited States may let the claimants present theirevidence. Frequently, however, the government, atthe request of the court, takes on the role of amicuscuriae, and presents evidence of ownership basedon its own title research. The district court willresolve such issues in every condemnation action.

Title Unit attorneys may serve either asadvisors or as counsel. Either way, their technicalexpertise, developed in reviewing titles for landpurchases and in conducting other title andboundary hearings, compliments the litigationexpertise of both Land Acquisition Sectioncondemnation attorneys and United StatesAttorneys. Although the cost to the United States, in time and money, for resolvingownership disputes can be significant, there isfrequently no alternative when the potential owners

are not interested in resolving the matter. To movethe case forward the government must take theinitiative. The true government benefit is inworking to assist (often) innocent parties inequitably sorting out complicated ownershipissues.

Sometimes, the Title Unit will be asked toassist in condemnation litigation when a caseinvolves an unusual legal issue. For example, afew years ago, the State of California asserted a“tidelands trust” claim of interest as to certainNavy land in San Diego. If the interest was valid,the state could potentially block a proposedredevelopment of the site. A condemnation actionwas initiated to seek the court’s determinationconcerning the validity of the state’s claim ofinterest, and, if valid, to acquire the state’s interest. The court determined that the state had no interestin the Navy land and dismissed the case. (UnitedStates of America, v. 15.320 Acres of Land, moreor less, in San Diego County, State of California,et al, United States District Court, SouthernDistrict of California, Civil No. 90-1562-E(BTM)).

In another case, the Title Unit acted as leadcounsel in a condemnation action of federal landbeing physically occupied by a private party,claiming an interest in it. The government believedthe private party’s claim was without merit. Itwould have initiated an ejectment action, exceptthat it needed the land immediately, and it realizedthat the private party could potentially frustrate thegovernment’s plans for the land if it repeatedlyfiled appeals. Since the private party was claimingit had some right to remain on the land (i.e., someownership interest), the agency, in consultationwith the Land Acquisition Section, decided to filea condemnation action and seek an immediateorder of possession. This was done, and theprivate party soon vacated the property anddropped its claim.

Client counseling:


The Title Unit constantly receives inquiriesfrom government agencies relating to real estatetransactions. Many questions concern theAttorney General’s title regulations and the reviewof title, but more frequently, the questions relate tobroader issues, such as the scope of an agency’sacquisition authority, or the determination of estateacquisition. On occasion, the questions turn intorequests for help and the Title Unit attorneysbecome directly involved in negotiations orsettlements. They become facilitators, assistingclient agencies in structuring and closingcomplicated real estate transactions. Someexamples follow:

The Federal Railway Administration acquiredUnion Station in Washington, D.C., several yearsago to facilitate the station’s renovation anddevelopment as a viable retail and transportationcenter. Because this agency is not normallyinvolved in land acquisitions, and because thistransaction was complex (involving for example,multiple parties, commercial leases and air rights),it asked the Title Unit to conduct the closing.

The General Services Administration hasenlisted the aid of the Title Unit in many federalcourthouse and office building acquisitions, mostnotably the Foley Square project in New YorkCity; the federal Courthouse in Alexandria,Virginia; a proposed federal office building in SanFrancisco; and a Census Bureau computer facilityin Maryland. Condemnation was ultimately usedto acquire rights in adjoining streets in the firstproject, but has been unnecessary (so far) in theothers.

The Air Force asked the Title Unit to join innegotiations for the acquisition of an easement toprevent the development of land on the Californiacoast next to the Vandenberg Air Force Base. Theland was very valuable and multiple interests in ithad to be addressed.

The Departments of the Interior andAgriculture recently enlisted the aid of the TitleUnit in a series of large land acquisitions. InAlaska, both agencies are working with the stateand private parties, to acquire interests in landsaffected by the Exxon Valdez oil spill. The TitleUnit participated in multiple negotiating sessionsearly in the process, and suggested a structure for

the transactions, which was ultimately adopted as amodel. The United States, the State of Alaska, andsometimes the seller native corporations, each haveoverlapping interests in the land being acquired, sothat each can assure that preservation of thenatural resources occurs.

In Montana, the Departments of the Interiorand Agriculture were involved in the acquisition ofthe New World Mine. The Title Unit conductedthe review of title, helped in the preparation ofdocuments, and helped close this proposed goldmine in the historic New World Mining Districtnear Yellowstone National Park. The mine posedan environmental threat to the park, and theagreed-upon solution was the acquisition by theUnited States of an interest in the site sufficient toprevent the development of the mine.

Within the Department of Justice, the TitleUnit has provided advice to multiple components. The Bureau of Prisons has a very active landacquisition program for new and expandedfacilities all over the country. Frequently, acommunity welcomes prison facilities as part of aneconomic revitalization; but the local communitydevelopment plans must be consistent with anyprison development plans. One site that waslocated next to an airport had restrictions on theuse of the land that needed to be reconciled withthe requirements of the Bureau of Prisons.

Another large land acquisition which involvedthe Title Unit was the Federal Bureau ofInvestigation’s new fingerprint facility in WestVirginia. This transaction involved a largeassemblage of rural properties. The Title Unitreviewed the title evidence and assisted instructuring easements with the state for access, andwith an adjoining landowner for buffer areas toscreen a nearby landfill.

The Title Unit has worked extensively withinthe ENRD by helping other sections in litigation,such as inverse takings and quiet title actionshandled by the General Litigation Section, orwetlands actions handled by the EnvironmentalDefense Section. The majority of time has beenspent with the Environmental Enforcement Sectionand the Environmental Protection Agency,developing an approach to incorporatinginstitutional controls in CERCLA consent decrees

to restrict the use of the land, protect the publichealth, and cap other remedies in place. TheEnvironmental Enforcement Section recentlypublished a new Model Consent Decree whichincludes information on institutional controls and anew model Environmental Protection Easementprepared by the Title Unit.

Who we are and how to reach us:Title UnitLand Acquisition SectionEnvironment and Natural Resources DivisionDepartment of Justice

Attorneys:Lewis M. Baylor Teresa L. Patrick

Secretary:Lucy Shepherd

Mail: P.O. Box 561Washington, D.C. 20044

Delivery: 601 Pennsylvania Ave. N.W.Room 6603Washington, D.C. 20004

E-mail:[email protected] [email protected]

Phone: (202) 305-0316Fax: (202) 305-8272


Timber Sale Litigation on Public LandsJohn WattsTrial Attorney, General Litigation SectionEnvironment and Natural Resources Division

The great national forests of this country arenot set aside for any one purpose, but instead areintended to be all things to all people, managedunder the amorphous principle of “multiple use”.The land management agencies are directedsimultaneously to protect the environment, toaccommodate recreation, and to provide acontinuous stream of commodity outputs such astimber. This article discusses the litigation thatfrequently results when the agencies are unable tosatisfy these competing goals. For the most part, agencies have broad substantive discretion tomanage the lands under their multiple use mandate. Congress requires agencies to comply withcomplex environmental analysis and publicparticipation procedures before they propose atimber sale, or take other action, with respect to thepublic lands. Much timber sale litigation focuseson the agencies’ compliance with these procedures,not on the substance of their decisions. It shouldbe noted that, while the Forest Service in theDepartment of Agriculture carries out timber saleson the public lands, the Bureau of LandManagement (BLM) in the Department of theInterior administers other federal land useable fortimber harvest.

I. The Forest Service’s Statutory Framework While the principal statute governing ForestService timber sales is the National ForestManagement Act (NFMA), 16 U.S.C. §§ 1600 et seq., the agency also operates under theprovisions of several earlier statutes. The originsof the Forest Service's authority to manage theNational Forests can be traced back nearly 100years, before the genesis of the agency itself. In1897, Congress enacted a statute vesting thepredecessor agency to the Forest Service with

expansive authority to make rules "to regulate [theForests'] occupancy and use and to preserve theforests therein from destruction." Act of June 4,1897, ch. 2, 30 Stat. 35 ("Organic Act") (codifiedas amended at 16 U.S.C. §§ 473-82, 551). TheOrganic Act is still in effect in modified form. 16U.S.C. §§ 473-82, 551.

In 1960, Congress enacted the Multiple Useand Sustained Yield Act (MUSYA), which madeexpress the Forest Service's authority to managethe National Forests for multiple uses under thebalance the agency deems will best meet the needsof the American people and make use of the forestresources. Act of June 12, 1960, 74 Stat.215, 16 U.S.C. §§ 528-31; see § 531(a). Theconcepts of multiple use and sustained yield offorest resources remain vital in the landmanagement planning of the Forest Service, asMUSYA is still in effect. The NFMA establishes the currentmanagement framework for the national forests,which “envisions a two-stage approach to forestplanning.” Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 757 (9th Cir. 1996); see Ohio Forestry Ass’n v. SierraClub, 118 S. Ct. 1665, 1668-69 (1998). The firstlevel is the programmatic level at which the ForestService develops "land and resource managementplans" (LRMPs) for the individual forests. Act ofAugust 17, 1974, 88 Stat. 476, 16 U.S.C. §§1601-04. The agency develops various alternativemanagement scenarios for the entire forest andanalyzes the environmental consequences, costs,and benefits of each alternative in a programmaticenvironmental impact statement (EIS) developedpursuant to the National Environmental Policy Act(NEPA). Id. § 1604(g)(1); 36 C.F.R. § 219.12. The chosen alternative becomes the final forestplan, which guides management of multiple useresources forest-wide for a ten to fifteen-yearperiod, subject to amendment and revision.

16 U.S.C. § 1604(f)(4)-(5); 36 C.F.R. § 219.10(f)-(g).

At the forest plan level, the Forest Service,among other things: 1) designates "managementareas" (MAs), which emphasize production orconservation of particular resources (e.g., timber,recreation, or wildlife) and specifies, with respectto each area, activities that are permissible andthose that are not; 2) identifies managementprescriptions, which direct how future actions maybe carried out in each MA; 3) establishesmandatory standards and guidelines with whichfuture activities forest-wide must comport; and, 4)projects levels of output for each resource. SeeCitizens for Envtl. Quality v. United States, 731F. Supp. 970, 977 (D. Colo. 1989); 16 U.S.C. § 1604; 36 C.F.R. §§ 219.10 et seq. In addition,the forest plan states a "desired future condition"for the forest and identifies the managementactivities necessary to achieve that condition. SeeKrichbaum v. United States Forest Serv., 973 F.Supp. 585, 588 (W.D. Va. 1997), aff’d, 139 F.3d890 (4th Cir. 1998). Forest plans are intended tobe flexible documents and amended as conditionschange. See 16 U.S.C. § 160(f)(4) (providing thatforest plans shall “be amended in any mannerwhatsoever after final adoption.”). The forestplan thus establishes a broad managementframework to guide future projects on the forest.

Once the LRMP is approved, implementationof projects occurs at a second stage whereindividual site-specific projects are proposed andassessed. Inland Empire, 88 F.3d at 757. Thesesite-specific projects, such as timber sales and roadconstruction projects, must be consistent with thestage-one forest plan. 16 U.S.C. §1604(i); Ohio Forestry, 118 S. Ct. at 1668. TheForest Service also evaluates individual site-specific projects for compliance with therequirements of the Endangered Species Act andother applicable laws, as discussed below.

In addition to setting forth a two-stageapproach to forest administration, the NFMA establishes substantive constraints on the Forest

Service’s management of its lands. One of themore important requirements is set forth in theviability regulation, which requires that fish andwildlife habitat be managed "to maintain viablepopulations of existing native and desired non-native vertebrate species in the planning area." 36C.F.R. § 219.19; see also 16 U.S.C. §1604(g)(3)(B) (the “diversity” provision, thestatutory authority for the viability regulation). Another important provision is the statute’sdirection that clear-cutting be used only where “itis determined to be the optimum method,” andother types of even-aged management to be usedonly when they are appropriate to meet theobjectives of the relevant land management plan. 16 U.S.C. § 1604(g)(3)(F)(i); see also 16 U.S.C. § 1604(g)(3)(F)(ii); 36 C.F.R. § 219.27(a)(7)(requiring site-specific analysis before even-agedmanagement is authorized). Among its othersubstantive provisions, the NFMA includesmeasures to prevent irreversible damage to soils,slopes, streams, and watershed conditions. See 16 U.S.C. § 1604(g)(3)(E)-(F). For furtherdiscussion of the substantive provisions of theNFMA, see Charles F. Wilkinson & H. MichaelAnderson, Land and Resource Planning in theNational Forests, 64 Or. L. Rev. 1 (1985). II. The BLM's Statutory Framework

The major statutes applicable to BLM timbermanagement are the Federal Land Policy andManagement Act (FLPMA), 43 U.S.C. §§ 1701 etseq., and the Oregon and California Railroad andCoos Bay Wagon Road Lands Act (O&CLA), Actof August 28, 1937, 50 Stat. 874, 43 U.S.C. §§ 1181a-j. In 1976, Congress passed FLPMAand adopted the philosophy of MUSYA, that BLMis to manage federal lands for multiple uses. Actof Oct. 21, 1976, 90 Stat. 2744, 43 U.S.C. §§ 1712(c)(1)-(2), 1732(a). FLPMA requirespromulgation of land use plans to govern federalland management, but does not establish standardsas detailed as those that apply to Forest ServiceLRMPs. BLM regulations detail the procedures


for developing Resource Management Plans(RMPs), the current version of the land use plans. 43 CFR subpart 1610. FLPMA did not requiredevelopment of these RMPs in any certain timeframe, and BLM is still operating under theprevious land use plans in some instances. FLPMA also calls for BLM to use a systematicinterdisciplinary approach to planning, and topromulgate regulations establishing a process thatallows state and local governments, and the publicat large, an opportunity to comment on andparticipate in development of RMPs. 43 U.S.C. § 1712(f). These regulations, found at 43 C.F.R. § 1610, provide that RMPs may be changedthrough amendment and are to be revised "asnecessary". 43 C.F.R. §§ 1610.5-5 - 16.10.5-6.

The O&CLA addresses the management ofsome, but not all, BLM timber-producing lands,specifically the revested Oregon & CaliforniaRailroad and reconveyed Coos Bay Wagon Roadgrant lands in western Oregon and northernCalifornia. The act provides that such lands "shallbe managed . . . for permanent forest production"and "in conformity with the principal [sic] ofsustained yield for the purpose of providing apermanent source of timber supply, protectingwatersheds, regulating stream flow, andcontributing to the economic stability of localcommunities and industries, and providingrecreational facilities." 43 U.S.C. § 1181a;see Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994), aff’d, 80 F. 3d 1401(9th Cir. 1996).

III. The Administrative Record Defines theScope of Challenges to Forest Service or BLMTimber Sales Under the statutory framework for both theForest Service and the BLM, challenges to timbersales proceed upon the administrative record ofdocuments before the decision-maker at the time ofthe challenged action. There is no private right ofaction under the NFMA, FLPMA, or NEPA. SeeLujan v. National Wildlife Fed., 497 U.S. 871,882 (1990) (discussion of FLPMA & NEPA). Accordingly, judicial review is under theAdministrative Procedure Act (APA), and “thecourt shall review the whole record or those parts

of it cited by a party.” 5 U.S.C. § 706. Thismeans that plaintiffs are not entitled to discoveryunless they can establish that an exception to therecord review principle applies. See AnimalDefense Fund v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), as amended, 867 F.2d 1244(1989). In order to preserve the record reviewprinciple, affidavits, testimony, or other extra-record evidence should be avoided, except asallowed by case law or as rebuttal if plaintiff isallowed to go beyond the record. Furthermore, thefiling of motions to strike is appropriate ifplaintiffs attempt to introduce extra-recorddocuments.

Administrative record cases are ordinarilyresolvable on cross motions for summaryjudgment, without any need for trial. SeeOccidental Eng’g. Co. v. INS, 753 F.2d 766, 770(9th Cir. 1985). The APA's standard of review forinformal agency adjudications governs: whether theaction was "arbitrary, capricious, an abuse ofdiscretion or otherwise not in accordance withlaw." 5 U.S.C. § 706; Citizens to PreserveOverton Park v. Volpe, 401 U.S. 402, 416 (1971);Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716-17 (9th Cir. 1993)(applying this standard to the Forest Service’sactions under the NFMA); see also Sierra Club v. Cargill, 11 F.3d 1545, 1548 (10th Cir. 1993)(same); Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992) (applying this standard to claimunder FLPMA).

As a procedural matter, file the record prior tothe initial scheduling conference with the judge, ifpossible. This way, the government can point tothe filed administrative record at the schedulingconference as a way of discouraging discovery. The administrative record can also serve as ourinitial disclosures.

IV. Jurisdictional DefensesTwo commonly used jurisdictional defenses, in

defending Forest Service or BLM timber sales,involve the APA’s requirements of exhaustion ofadministrative remedies and final agency action. Concerning exhaustion, the Forest Service hasprovided an opportunity for administrative appealof most proposed timber sales. 36 C.F.R.

§ 215.7(b); 16 U.S.C. § 1612 n.l. Only greentimber sales under 250,000 board feet, and salvagetimber sales under 1 million board feet, whichsatisfy certain conditions, are exempted. ForestService Handbook 1909.15 § 31.2(4) (found atNational Environmental Policy Act; Revised Policyand Procedures, 57 Fed. Reg. 43180, 43209(1992)). If plaintiffs have failed to seek anadministrative appeal, the case should be dismissedfor failure to exhaust administrative remedies.13

The Supreme Court’s decision in Darby v. Cisneros, 509 U.S. 137 (1993), establishes the prerequisites for an exhaustion defense in all casesrelying upon the APA’s waiver of sovereignimmunity, which includes cases brought under theNFMA and FLPMA. As the Supreme Court statedin Darby, “where the APA applies, an appeal tosuperior agency authority is a prerequisite tojudicial review only when [1] expressly required bystatute or when an agency rule requires appealbefore review and [2] the administrative action ismade inoperative pending that review.” 509 U.S. at 154. See also Glisson v. United States Forest Serv., 55 F.3d 1325, 1328 (7th Cir. 1995);Clouser v. Espy, 42 F.3d 1522, 1532-33 (9th Cir. 1994). Under the first of theseconditions, Congress, in 1994, statutorily requiredpotential plaintiffs to pursue any administrativeappeal opportunities available within theDepartment of Agriculture. 7 U.S.C. § 6912(e). One court construed this requirement: “It is hardto imagine more direct and explicit languagerequiring that a plaintiff suing the Department ofAgriculture, its agencies, or employees, must firstturn to any administrative avenues beforebeginning a lawsuit and, as the Supreme Court didin Darby, I must abide by the statutory language.”

Gleichman v. United States Dep’t of Agriculture,896 F. Supp. 42, 44 (D. Me. 1995); see also 36C.F.R. § 215.20 (Forest Service rule also requiringexhaustion). Thus, the first condition forexhaustion is satisfied.

The second condition is met when the agency"provides that the action meanwhile is inoperative"pending the appeal. Once an appeal is filed,implementation is delayed until 15 days after thedate of the appeal disposition. 36 C.F.R. §215.10(b). Only if certain emergencycircumstances occur will the action beimplemented while the appeal is pending. Id. §215.10(d). If both conditions of Darby aresatisfied, and plaintiffs have failed toadministratively appeal Forest Service timbersales, their claims should be dismissed.

A second jurisdictional defense is the lack offinal agency action. There is no private right ofaction under NFMA, FLPMA, or NEPA, asdiscussed in section III above. Accordingly,potential plaintiffs must satisfy the requirements ofthe APA and challenge “final agency action forwhich there is no other adequate remedy in acourt.” 5 U.S.C. § 704; see Lujan v. NationalWildlife Federation, 497 U.S. 871, 882 (1990)(FLPMA & NEPA). The standards for finalagency action are set forth in two recent SupremeCourt decisions. Bennett v. Spear, 520 U.S. 154(1997); Franklin v. Massachusetts, 505 U.S. 788,797 (1992).

Other jurisdictional defenses include standing,ripeness, and mootness. The Supreme Courtrecently dismissed, as unripe, a facial challenge tocertain provisions of a Forest Service LRMP,where plaintiffs had failed to challenge any specifictimber sales or other projects implementing theplan. Ohio Forestry, 118 S. Ct. 1665(1998). While you should be aware of thisdecision, it applies only to certain plan-leveldecisions, and does not provide a ripeness defenseto litigation over specific timber sales. Indeed, theSupreme Court ruled that certain planningdecisions were unripe precisely because they were

13 BLM also allows for administrative appealsof timber sales by adversely affected individuals. 43C.F.R. §§ 4.410, 4.411. Under BLM procedures, anywould-be appellants must first protest the decisioninvolved to the authorized officer. 43 C.F.R. § 5003.3.


more appropriately contested through challenges totimber sales and other projects implementing theplan. If you have any uncertainty about the use ofthe Ohio Forestry precedent, you are encouragedto contact Stephanie Parent or John Watts, twoEnvironment and Natural Resources Divisionattorneys whose telephone numbers are provided atthe end of this article.

V. Interaction with Other StatutesFrequently, the defense of Forest Service or

BLM timber sales involves other environmentalstatutes, especially the National EnvironmentalPolicy Act (NEPA), the Endangered Species Act(ESA), 16 U.S.C. §§ 1531 et seq., and the CleanWater Act, 33 U.S.C. §§ 1251 et seq. If you havea NEPA issue in a Forest Service case, animportant authority is the Forest Service NEPAHandbook, which can be found at NationalEnvironmental Policy Act; Revised Policy andProcedures, 57 Fed. Reg. 43180 (1992). This setsforth Forest Service NEPA procedures as asupplement to the Council for EnvironmentalQuality regulations at 40 C.F.R. §§ 1500, et seq. Courts have split on whether the Forest ServiceNEPA Handbook is binding on the agency. Compare Rhodes v. Johnson, 153 F. 3d 785 (7th Cir. 1998) (holding that the Handbook wasbinding), with Southwest Ctr. for BiologicalDiversity v. United States Forest Serv., 100 F.3d1443, 1450 (9th Cir. 1996) (holding that theHandbook was not binding). BLM’s NEPAprocedures are set forth in the agency’s NationalEnvironmental Policy Handbook, H-1790-1(1988). An excellent resource for NEPA cases isDaniel R. Mandelker, NEPA Law and Litigation(Clark, Boardman & Callaghan EnvironmentalLaw Series, updated with inserts annually).

If you have an ESA claim, under Departmentpolicy, you should refer it to the Wildlife andMarine Resources Section of the Environment andNatural Resources Division at the Department ofJustice at (202-305-0210).

VI. Resources for Further Reference

The General Litigation Section of theEnvironment and Natural Resources Division has anumber of attorneys who regularly handle timbersale litigation. Several have offered to beresources for United States Attorneys: AndreaBerlowe (202-305-0478), Ted Boling (202-305-9609), Lisa Holden (202-305-0474),Greg Page (202-305-0446), Stephanie Parent(202-305-0428), Andrew Smith (202-305-0427),and John Watts (202-305-0495). Two excellentarticles on the NFMA are: Charles F. Wilkinson& H. Michael Anderson, Land and ResourcePlanning in the National Forests, 64 Or. L. Rev. 1 (1985); and Michael J. Gippert & Vincent L. DeWitte, The Nature of Land & ResourceManagement Planning Under the NFMA, 3 Envtl. Law. 149 (1996).ò

An Overview of Mineral RoyaltyLitigationAnn D. NavaroTrial Attorney, General Litigation SectionEnvironment and Natural Resources Division

Donna S. FitzgeraldTrial Attorney, General Litigation Section,Environment and Natural Resources Division

I. IntroductionAs the administrator and collector of revenues

from more than 25,000 federal and Indian mineralleases, covering approximately 21.1 million acres,the Department of the Interior (Interior) is thedefendant in many actions brought by privatelessees under mineral leasing statutes, regulations,and lease terms. A substantial portion of thelitigation over federal leases revolves around thelessees’ obligations to pay a percentage of thevalue of the minerals, or a royalty, to thegovernment . The Minerals Management Service(MMS), a bureau within the Interior, collects,verifies, and distributes mineral revenues fromleases on federal and Indian lands, and managesthe mineral resources of the Outer ContinentalShelf. The Environment and Natural ResourcesDivision (ENRD) defends most of these cases for the MMS.

II. The Nature of Royalty LitigationMany disputes between the MMS and lessees

concern the authority of the MMS to examinelessees’ transactions involving mineral productionfrom federal and Indian leases and, ultimately, theproper valuation of minerals produced from federaland Indian lands for royalty payments on theproduction. The stakes, in terms of revenue, arehigh. In recent years, the MMS has collectedapproximately four billion dollars per year, down

from a high of eleven billion dollars in 1983. In anaverage month, the MMS’s Royalty ManagementProgram processes approximately $300 million inroyalties, bonuses, and rents. The MMSdistributes these revenues to states, Indian tribes,and specific United States Treasury accounts,including the Historic Preservation Fund, the Landand Water Conservation Fund, and theReclamation Fund, depending upon the location ofthe specific lease.

The amount and nature of litigation overroyalty issues reflects the significance of theroyalty program. The cases are many and ofteninvolve the application of detailed regulations tocomplex transactions. These cases are particularlychallenging because the government is in a uniqueposition as the lessor of mineral interests, withrights and obligations that differ substantially fromthose of private parties. Moreover, each case hasthe potential to set significant precedent that willcontrol or influence other royalty assessments orroyalty program decisions by the MMS. This isdue to the commonality of the issues raised inmultiple cases filed in the various jurisdictions. Each case must be considered in relation to past,pending, and possible future litigation. In addition,as a group, the private lessees, ranging from smallindependent operators to the largest integrated oiland gas companies, use litigation to define theindustry’s royalty obligations from a broaderprogrammatic perspective. The industry often actsaccordingly to select a forum and particular case toadvance the industry’s view of its royaltyobligations.

III. The Mineral Leasing Statutes


A variety of federal statutes govern federal andIndian mineral leases. This article focuses onstatutes and ideas applicable to the production ofcoal, oil, and gas. Other mineral resources, whichaccount for a small portion of revenues collectedby the MMS, (including potash, sodium,phosphate, and garnet), will not be specificallydiscussed. The MMS issues coal and onshore oiland gas leases under the Mineral Leasing Act, 30U.S.C. §§ 181-287 (for onshore public domainlands), the Mineral Leasing Act for AcquiredLands, 30 U.S.C. §§ 351-59, and Indian leasingstatutes 25 U.S.C. §§ 396a - g (tribal leases) and25 U.S.C. § 396 (allotted leases). The OuterContinental Shelf Lands Act, 43 U.S.C. §§ 1331-56, governs leasing on the OuterContinental Shelf. The MMS has theresponsibility to enforce the applicable statutes,regulations, and lease terms that govern the lessee'sliability for royalties and other payments due underthe leases.

In addition to these statutes, Congress enactedthe Federal Oil and Gas Royalty Management Act(FOGRMA), 30 U.S.C. §§ 1701-57, to strengthenInterior's royalty audit and enforcement authorityin the oil and gas context. FOGRMA requiresInterior to establish a comprehensive accountingand audit system, and to make additionalcollections or refunds as appropriate. Mostrecently, Congress passed the Federal Oil and GasRoyalty Simplification and Fairness Act (RSFA)of 1996. Pub. L. 104-185, 110 Stat. 1700 (Aug. 13, 1996). RSFA adds to and modifies bothFOGRMA and OCSLA with provisions, includinga seven-year statute of limitations on royaltycollection, payment of interest on overpayments ofroyalties, and a framework for the additionaldelegation of royalty functions to the states. Interior is now implementing its provisions.

IV. The Nature of the Royalty ObligationUnder the leasing statutes and regulations,

lessees generally must pay royalties calculated as aspecified percentage of the value of productionsaved, removed, or sold from the lease. While thisconcept appears simple, its implementation is atthe heart of most royalty disputes. What, exactly,is the value of the production for royalty purposes?

Current regulations maintain the important andlong-established principle that the "gross proceeds"received for disposition of coal, oil, and gasproduction is the minimum value for royaltypurposes of minerals produced and sold fromfederal and Indian leases. See 30C.F.R. Part 206.

As defined in the regulations governing gas,mimicked in the oil and coal contexts, “grossproceeds” mean “the total monies and otherconsideration accruing to an oil and gas lessee forthe disposition of unprocessed gas, residue gas, orgas plant products produced . . . .” 30 C.F.R. § 206.151. See Hoover & Bracken Energies, Inc. v. Department of the Interior, 723 F.2d 1488(10th Cir. 1983); Pennzoil Exploration & Prod. Co. v. Lujan, 751 F. Supp. 602, 605 (E.D. La. 1990), aff'd, 928 F.2d 1139 (TECA1991); Marathon Oil Co. v. United States, 604 F.Supp. 1375 (D. Alaska 1985), aff'd, 807 F.2d 759 (9th Cir. 1986); Enron Oil & Gas Co. v. Lujan, 778 F. Supp. 348 (S.D. Tex. 1991), aff’d, 978F.2d 212 (5th Cir. 1992). In sales not conductedat arm’s-length, other royalty valuation regulationsmay be applicable, but under no circumstances isroyalty calculated on less than the “grossproceeds” accruing to the lessee. See 30 C.F.R. §206.152 (gas).

Propriety disputes of the royalty assessmentoften concern payment types to a lessee that mayproperly be considered as part of a lessee’s grossproceeds for valuation purposes or the types ofproperly deductible expenses. See MobilExploration & Producing U.S., Inc. v. Babbitt,913 F. Supp. 5 (D.D.C. 1995). For example, theENRD currently has pending litigation on thequestion of whether payments made to a coalproducer by a coal purchaser to defer delivery ofcontracted for coal may be considered part of theproducer’s “gross proceeds” for royalty purposes. Other recent cases concern whether specific typesof payments to producers of gas, common after therestructuring of the gas industry in the late 1980s,may be considered part of the “gross proceeds”received by the lessee. See United States v.Century Offshore Management Corp., 111 F.3d443 (6th Cir. 1997); Independent Petroleum Ass’n

of America v. Babbitt, 92 F.3d 1248 (D.C. Cir.1996).

V. The Agency’s Audit Process and DocumentReview

In the context of its audit and enforcementauthorities, arriving at a value for royalty purposesmay be a long process for the MMS, involvingdetailed review of voluminous documentsgenerated by the lessee. To retrieve documentsthat a lessee does not voluntarily provide, theMMS may issue a subpoena. FOGRMA providesthe MMS authority to “require by subpena [sic]the attendance and testimony of witnesses and theproduction of all books, papers, production andfinancial records, documents, matter, andmaterials, as the Secretary may request. . . .” 30U.S.C. § 1717(a)(3). If a lessee refuses to complywith an MMS subpoena, FOGRMA allows theAttorney General to seek judicial enforcement of it. 30 U.S.C. § 1717(b). Jurisdiction is proper in afederal district court where the subpoenaed party is“found, resides, or transacts business.” 30 U.S.C.§ 1717(b).

As of this date, very few MMS subpoenashave reached the judicial enforcement stage. However, the enforcement actions are framedsimilarly to actions involving enforcement of otheragencies’ administrative subpoenas. Issues thathave arisen in enforcement proceedings include:whether pre-enforcement review of an MMSsubpoena is available; whether the MMS has legalauthority under FOGRMA to subpoena internalaudit reports and other internal company data; andwhether the MMS has authority to seekenforcement of an administrative subpoena whenthere is a pending criminal investigation of thesubpoenaed party.

Another recent issue related to documentproduction is the question of the MMS’s right toreview the records of an affiliate’s arm’s-lengthresale of oil or gas. This issue arises when theproducing company sells to an affiliate. This isoften practiced by large and integrated oil and gas

companies. For example, in Shell Oil Co. v. Babbitt, 125 F.3d 172 (3rd Cir. 1997), Shellchallenged an MMS order directing Shell toproduce records concerning its resale of oilproduced by and purchased from its subsidiary,Shell Western E & P, Inc. The Third Circuit heldthat, under FOGRMA and applicable regulations,MMS could properly order the production ofdocuments relating to the ultimate arm’s-lengthresale by Shell of oil that it acquired from itssubsidiary in a transaction that was not conductedat arm’s-length. The Tenth Circuit reached thesame conclusion in Santa Fe Energy Products Co.v. McCutcheon, 90 F.3d 409 (10th Cir. 1996).

VI. The Statute of Limitations — Does itApply?

In addition to issues that arise in the MMS’saudit obligations, the ENRD has litigated, over thepast several years, the question of the applicabilityof the statute of limitations at 28 U.S.C. §2415(a) to orders to pay additional royalties and tocounterclaims brought to enforce those orders. Although the 1996 RSFA specifically imposes alimitations period of seven years, the issue of theapplicability of Section 2415(a) arises with somefrequency, since the RSFA applies only to oil andgas production after the date of its enactment. Courts in several jurisdictions have held thatSection 2415(a) does not apply to governmentclaims for additional royalties. See PhillipsPetroleum v. Johnson, No. 93-1377, 1994 WL484506 (5th Cir. Sept. 7,1994); Samedan Oil Corp. v. Deer, No. Civ. A. 94-2123 (RCL), 1995 WL 431307 (D.D.C. 1995),vacated, 971 F. Supp. 19, 35-39 (D.D.C. 1997),(reversed on other grounds sub. nom.);Independent Petroleum Ass’n of America v.Babbitt, 92 F.3d 1248 (D.C. Cir. 1996); VastarResources, Inc. v. Armstrong, Civil No. 94-2040(D.D.C. 1997); Atlantic Richfield Co. v. U.S.Dept. of the Interior, Civil No. 94-62 (D. Mont.1995); Marathon Oil Co. v. Babbitt, No. Civ.A. 94-N-1429 1996 WL 640436 (D. Colo.


Aug. 29, 1996), vacated as moot, 133 F.3d 932(10th Cir. 1998). These decisions have turned onthe courts’ findings that an MMS order is not an“action” or that government-owed royalties are not“money damages” within the meaning of Section2415. In contrast, three decisions have held thatSection 2415 does apply to government claims foradditional royalties. Oryx Energy Co. v. UnitedStates Dep’t of the Interior, Civil No. 92-C-1052(N.D. Okl. 1994), appeal pending; Amerada HessCorp. v. United States Dep’t of the Interior,Civil No. 94-C-1051-H (N.D. Okla.1997), appeal pending; Oxy USA Inc. v. Babbitt,Civil No. 96-C-1067-K (N.D. Okla.1998); Marathon Oil Co. v. Babbitt, 938 F.Supp. 575 (D. Alaska 1996). There isdisagreement between the industry and the MMSas to whether the Tenth Circuit has squarelyaddressed the issue. See Phillips Petroleum Co. v.Lujan, 4 F.3d 858 (10th Cir. 1993); MesaOperating Ltd. Partnership v United States Dep’tof the Interior, 17 F.3d 1288 (10th Cir. 1994).

VII. ConclusionENRD litigates the entire spectrum of issues

relating to the MMS’s Royalty ManagementProgram. This article presents only a shortsummary of a few of the topics that arise. Issuesrange from initial document production thatenables the MMS to carry out its auditresponsibilities, to defense of MMS’s royaltyassessment and policy decisions, to the defense ofchallenges to rules issued by Interior incident to itsroyalty collection authority and obligations. Royalty cases raise complex issues and presentparticular challenges to the litigator, given thegovernment’s unique obligation to collect, verify,and distribute mineral revenues from leases onfederal and Indian lands.ò

Public Interest Value

William J. KollinsFormer Chief, Land Acquisition SectionEnvironment and Natural Resources Division

BackgroundRecently, we have begun to see an asserted

highest and best use of “preservation,”“conservation,” and “natural lands” in landownerappraisals of properties that the United States isacquiring for preservation-oriented projects. Theseappraisals typically base their valuations on salesin which the purchaser is a governmental entity,and on sales of land quite distant from the subjectproperty, even several states away. Usually, theseappraisals purport to be "fair market value"appraisals and report values in excess of the pricethe properties could command in the generalmarket for an economic use. For instance, alandowner whose unusable Mississippi swamplandis being acquired may assert that the highest andbest use of the land is for wetland preservation,and use an acquisition by New Jersey for a naturepreserve as a “comparable sale.”

The value estimated by an appraiser in thisfashion has been described as a “Public InterestValue (PIV).” This is a term coined by itsproponents to describe a real estate value, derivedfrom the public’s interest in preservingundeveloped land which has significant natural,scenic, or wildlife habitat features. The public hasboth a powerful interest in preserving natural landsand the means to do it. This value, containing thepublic interest value proponents, creates a specialvalue for that use, (essentially, a hold-up value).

The PIV concept first appeared in the late1980's and early 1990's, urged by a small butvocal group of appraisers. A dispute ensuedamong the members of the appraisal profession asto whether "preservation," "conservation," and"natural lands" are valid "highest and best use" inappraising the "fair market value" of a property. While that dispute was going on, the federal landacquiring agencies reached their own conclusion on

the matter, and formalized it in the “InteragencyLand Acquisition Conference Position Paper: Onthe issue whether a noneconomic highest and bestuse can be a proper basis for the estimate ofmarket value” (April 14, 1995).14 The positionpaper15 concluded that:

[I]t is the Conference's position that anoneconomic highest and best use is not aproper basis for the estimate of marketvalue and, accordingly, that a highest andbest use of conservation, preservation, orother use that requires the property to bewithheld from economic production inperpetuity, is not a valid use upon whichto estimate market value. ***

14 The Interagency Land AcquisitionConference is an organization composed ofrepresentatives of federal agencies engaged in theacquisition of real estate for public uses. TheConference was established on November 27, 1968,through invitations issued by the Attorney General.The Conference conducts its business by ad hoccommittee called into session as land acquisitionissues arise that affect the federal land acquiringagencies.

15 The position paper is accessible on theInternet at http://www.usdoj.gov/enrd/land-ack/propostn.htm.


In the Spring of 1996, the Appraisal Institute16

issued its position on the question:

The Appraisal Institute’s Position on PIV As a result of considerable discussion anddebate, the Appraisal Institute’s positionon PIV and the related family of conceptsis summarized as follows:• If the purpose of an appraisal assignmentis to estimate market value, then thehighest and best use of the property to beappraised must be an economic use.• Preservation and conservation are notrecognized as economic alternatives to beconsidered in the highest and best useanalysis.• Transactions involving purchasers whoseintent is to preserve/conserve privatelyowned natural lands should not beconsidered as reliable evidence in supportof the market value estimate.Until such time as the definitions of market

value and highest and best use are changed, anduntil introduction of new systems occur to replacethe current legal and market systems of ourcountry, the above-stated policy will clearly governthe members of the Appraisal Institute. It shouldalso serve as a guide to the profession,governments, other users of appraisal services, andthe public at large. Hanson, Public Interest Valueand Noneconomic Highest and Best Use: TheAppraisal Institute’s Position, Valuation Insightsand Perspectives, 27, 48 (Spring 1996). (Copiesof the entire position paper are available from theLand Acquisition Section.)

The Division’s Litigating Position on PIV

In line with the views expressed by ILAC, AI,and ASFMRA, described above, theEnvironmental and Natural Resources Division(ENRD) regards PIV and similar values based ona highest and best use of conservation,preservation, natural land, as improper valuationpremises where, as in a federal eminent domainaction, the issue for determination is fair marketvalue.

There is no court decision, however, that hasaddressed the issue of the admissibility of PIV in acondemnation proceeding. The way to deal withthis issue is by applying the basic principles of thelaw of just compensation. The balance of thisarticle describes these basic principles togetherwith the strategy and legal arguments to be made.

Basics of the Law of Just CompensationEspecially Pertinent to this Issue

In an effort to find some practical standard forthe measurement of just compensation, the courtsearly adopted, and have retained, the concept of“market value.” United States v. Miller, 317 U.S. 369, 375 (1943). The continuing validity of thefair market value standard for determining justcompensation has been affirmed by the SupremeCourt in its latest decision on this issue,United States v. 50 Acres of Land, 469 U.S. 24(1984).

“Market value,” or “fair market value,” as it isoften denominated, has been defined by theSupreme Court as “the sum which, considering allthe circumstances, could have been obtained [forthe property]; that is, the amount that in allprobability would have been arrived at by fairnegotiations between an owner willing to sell and apurchaser desiring to buy.” Olson v. United States, 292 U.S. 246, 257 (1934). TheCourt added that “[i]n making that estimate thereshould be taken into account all considerations thatfairly might be brought forward and reasonably begiven substantial weight in such bargaining.” Id. The measure of compensation is not the value tothe owner for his particular purposes or to thecondemnor for some special use, United States v.Petty Motor Co., 327 U.S. 372, 377 (1946),rather, the inquiry must be “what is the propertyworth in the market . . . .” Boom Co. v.

16 The Appraisal Institute is an organizationof professional real estate appraisers qualified byeducation and experience, members of which mustadhere to its Code of Professional Ethics andStandards of Professional Appraisal Practice. Amember holds the designation “MAI.” The AppraisalInstitute is the country's largest and most prestigiousprofessional appraiser organization, with 14,000members representing the merged M.A.I. andS.R.E.A.

Patterson, 98 U.S. 403, 407-08 (1878). Themarket value standard is an objective standard. Market value does not fluctuate with the needs ofthe condemnor or condemnee but with generaldemand for the property. Petty Motor Co., 327U.S at 377-78. Or as stated in United States v.Chandler-Dunbar Co., 229 U.S. 53, 80 (1913),[t]hat the property may have to the public a greatervalue than its fair market value affords no criterionfor estimating what the owner should receive.”

A most important consideration in ascertainingthe fair market value of a property is thedetermination of the property’s “highest and bestuse,” that is, “[t]he highest and most profitable usefor which the property is adaptable and needed orlikely to be needed in the reasonably near future.”Olson 292 U.S. at 255. The highest and best useis to be considered, “not necessarily as the measureof value, but to the full extent that the prospect ofdemand for such use affects the market value whilethe property is privately held.” Id.

An excellent discussion of the law relating tohighest and best use is found in the UniformAppraisal Standards for Federal LandAcquisitions, Interagency Land AcquisitionConference (1992), Sec. A-3, reproduced below.17

A-3. Highest and best use: Determination of fairmarket value concerning the property’s “highestand best use” — that is, the highest and mostprofitable use for which the property is adaptableand current and future needs. Ordinarily, thehighest and best use of property is the use to whichit is being subjected at the time of taking. However, if the property is clearly adaptable to ause other than the existing use, its marketable

potential for such use should be considered indetermining the property’s fair market value. However, just compensation cannot be predicatedupon potential uses that are speculative andconjectural; the Supreme Court has said:

Elements affecting value that depend on eventsor combinations of occurrences which, whilewithin the realm of possibility, are not fairlyshown to be reasonably probable should beexcluded from consideration, for that would beto allow mere speculation and conjecture tobecome a guide for the ascertainment of value . . . . [Footnotes omitted.]

A proposed highest and best use requires ashowing of reasonable probability that the land beboth physically adaptable for such use and thatthere is a need or demand for such use in thereasonable future; physical adaptability alone isinsufficient. And as spelled out in more detailunder the heading “Conjectural and speculativeevidence; (infra, p. 26), remote or speculative usesshould not be considered.” [Footnotes omitted.]

Highest and best use cannot be predicated on ademand created solely by the project for which theproperty is taken (e.g., rock quarry, when the onlymarket is the highway project for which propertywas taken). A proposed highest and best usecannot be the use for which the government isacquiring the property (e.g., missile test range,airfield, park), unless there is a prospect anddemand for that use by others than the government. [Footnotes omitted.]

Demonstration of the application of these lawprinciples, in arguing for the exclusion of publicinterest value evidence, follows.

Pretrial Motions to Exclude Under DaubertIn light of the fact that the Appraisal Institute

repudiated highest and best uses of conservation,preservation, and the like as a valid basis fordetermining a property’s fair market value, amotion in limine to exclude as unreliable theappraiser’s valuation testimony based on such a

17 This publication contains a thorough, butconcise, exposition of the law of just compensation andis recommended reading for anyone handling acondemnation case. It is available in hard copy bycontacting the Land Acquisition Section and can beaccessed on the Internet at the following address:http://www.usdoj.gov/enrd/land-ack.


use might be pursued under Daubert v. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579(1993),18 provided the jurisdiction has expandedthe Daubert standard to embrace non-scientificexpert testimony.

In Daubert, 509 U.S. at 592-96, the SupremeCourt outlined a two-step standard regarding theadmissibility of scientific testimony19 under Rule702. The preliminary inquiry is whether theknowledge the expert offers is reliable. See id. The Supreme Court declined to set forth a“definitive checklist” of what constitutesreliability. Id. at 592. Some factors it deemedpertinent included, “whether the theory ortechnique has been subjected to peer review andpublication,” and “whether the theory or techniquehas met with general acceptance within theparticular community.” Daubert, 509 U.S. at 593-94.

The appraiser’s professional peers havescrutinized and soundly rejected the technique (ortheory) of valuing the condemned property basedon a highest and best use of conservation orpreservation. The appraiser’s highest and best usetheory of “preservation or conservation” is notreliable because it has been unable to withstandpeer review or gain acceptance in the appraisalcommunity. It fails the critical first prong of theDaubert test, and the court should exclude thetestimony.

When appropriate, combining the Daubertargument with a motion asking the court to excludespeculative evidence as to highest and best use, and

to exclude evidence of sales that are notcomparable or that are not fair indicia of marketvalue, should be made as discussed below.

Pretrial Motion to Screen And ExcludeEvidence of Highest And Best Use

We can expect the appraiser valuing theproperty for a highest and best use ofconservation/preservation to contend that there is amarket for properties like the subject forpreservation or conservation. Both environmental organizations and local, state, and FederalGovernment agencies that purchase forpreservation annually spend untold millions to purchase lands for preservation and conservation. These specialized purchases do not establish amarket demand for the subject property forconservation/preservation.

The government’s need for the property mustbe excluded in assessing market demand for theproperty for that use as a matter of law. Theappraisers must establish that: (1) there is, orwithin the reasonable future will be, a demand forthe subject property for the asserted highest andbest use, (2) by others than the government. (Seecases cited in footnotes 29 and 30 accompanyingthe text quoted above from Sec. A-3 of theUniform Appraisal Standards.) Failing that, theasserted highest and best use remains a speculativeuse for which there is no compensation.

Through discovery and exchange ofappraisals, we should learn whether thelandowner’s appraiser has any factual basis forasserting a market demand for the subject propertyfor the proposed highest and best use, and if hehas, what that basis is. If he has not furnished abasis, or if the basis is weak or speculative, file apretrial motion requesting the court to screen theappraiser’s evidence of highest and best use, andexclude it as speculative, based on the legalprinciples that follow.

Condemnation cases differ from other civilcases in that the role of the jury is limited by Rule 71A(h) Fed. R. Civ. P.,which provides that a party"may have a trial by jury of the issue of justcompensation." The rule continues by stating,"[t]rial of all issues shall otherwise be by thecourt."

18 For an excellent treatment of the subjectof excluding expert testimony under Daubert, seeEaston, “Yer Outta Here!” A Framework ForAnalyzing the Potential Exclusion of Expert TestimonyUnder the Federal Rules of Evidence, 32U.Rich.L.Rev. 1, January, 1998.

19 The type of testimony to which thestandard applies has been expanded beyond the field ofscience by some courts to all expert testimony basedupon technical or other specialized knowledge, whichwould encompass expert appraisal testimony. However, not all courts have joined in this expansion. See Easton, op. cit, at 7, esp. n. 110.

By virtue of this rule, we regard the judgepresiding over a condemnation trial as thegatekeeper of the evidence that may be presented toa condemnation jury. Thus, in United States v. 320 Acres of Land in Monroe County, Florida,605 F.2d 762 (5th Cir. 1979), the court held that"it is the trial court's responsibility under Rule71A(h) to screen all proffered potential useevidence and exclude from consideration by thetrier of fact evidence of any potential uses uponwhich a just compensation award may not, as amatter of law, be based." Id. at 819. Any partyseeking to offer evidence of value, based onanother use of the land [besides the present use],has the burden of proving that it is feasible underthe Supreme Court's rule in Olson v. United States, 292 U.S. 246, 257 (1934). Proof ofthat higher and better use for the land must includeevidence that "the property is adaptable and neededor likely to be needed in the reasonably nearfuture...not necessarily as a measure of value, butto the full extent that the prospect of demand forsuch use affects the market value...." Id. at 255. "Physical adaptability alone" is not enough toestablish a highest and best use for landcondemned, id. at 256, because, as cautioned bythe Supreme Court, the court must not permitspeculative evidence. The Court explained:

In making that estimate [of market value]it should be taken into account allconsiderations that fairly might be broughtforward and reasonably be givensubstantial weight in such bargaining . . . . Elements affecting value that depend uponevents or combinations of occurrenceswhich, while within the realm ofpossibility, are not fairly shown to bereasonably probable should be excludedfrom consideration for that would be toallow mere speculation and conjecture tobecome a guide for the ascertainment ofvalue a thing to be condemned in businesstransactions, as well as in judicialascertainment of truth.

Id at 257.To meet the Olson criteria, the use must be

physically and legally feasible ("adaptable"), andthere must be market demand for the use of theproperty in the "reasonably near future." Thestandard for evaluating whether to allow the trierof fact to consider a proffered highest and best useis that it must be reasonably probable.

A pretrial hearing may be requested to screenthe evidence that will be presented to the jury in thetrial of the case. The law requires the court toscreen the proposed uses for the property incondemnation and to exclude those that arespeculative from jury consideration. United States v. 158.24 Acres, etc., 696 F.2d 559(8th Cir. 1982); United States v. 341.45 Acres ofLand in St. Louis County, Minnesota, 633 F.2d108, 110-112 (8th Cir. 1980); 320 Acres of Landin Monroe County 605 F.2d at 813-20. AccordLoveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153, 158 (1990). See also United States v. 478.34 Acres of Land, 578 F.2d156, 159-60 (6th Cir. 1978).

The court in 320 Acres discussed Olson v. United States and found that there must be proofof a potential use's practicality and reasonablelikelihood in order to establish "market demand." United States v. 320 Acres, 605 U.S. at 814.

*** [A]bsent such proof the allegedpotential use remains a speculative use forwhich, as a matter of law, the landownercannot be compensated. Consequently,there is no reason to allow the jury ***, indeciding the issue of just compensation, toeven consider a use that is not reasonablyprobable. [Emphasis in original.]

Id. This opinion is careful to point out that thetrial court is not given the responsibility ofdetermining the highest and best use of the subjectproperty. Id. at 817. Rather, the court is charged


with excluding uses which are speculative, becausethere is not sufficient proof to establish marketdemand. Id. at 814. See also United States v.341.45 Acres of Land in St. Louis County,Minnesota, 633 F.2d at 111.

Pretrial Motion to Screen And ExcludeComparable Sales Evidence

In PIV appraisals, the appraiser’s selection ofparticular sales as “comparable” to the subjectproperty is a key to generating exorbitant valueopinions.20 The appraiser selecting as comparablesales properties that are superior to the subject dueto differences in highest and best use, access,availability of utilities, development potential,zoning, size, regulatory restrictions, and so forth,and not making appropriate downward adjustmentsto value and/or making unjustified upwardadjustments is a good example. Often the“comparable” is so drastically different from thesubject that the difference cannot be accounted forwith any meaningful adjustment.

Where the difference between a purported“comparable sale” and the subject property is suchthat the sale does not provide a meaningful basisfor estimating the value of the subject, file apretrial motion asking the court to screen andexclude that sale from evidence. At least one trialcourt has followed this procedure, and it wasapproved on appeal. United States v. 33.90 Acresof Land, etc., 709 F.2d 1012 (5th Cir. 1983)

It is well established that the admissibility ofallegedly comparable sales in a condemnation caseis within the sound discretion of the trial court anda ruling thereon is reviewable only for abuse ofdiscretion. See id; United States v. 1,129.75Acres, Etc., 473 F.2d 996, 998 (8th Cir. 1973); United States v. Certain Land in City ofFort Worth, Texas, 414 F.2d 1029 (5th Cir.1969); United States v. 55.22 Acres in Yakima

County, Washington, 411 F.2d 432, 434 (9th Cir.1969).

Certain kinds of sales are inadmissible toprove market value as a matter of law. Forcedsales, i.e., sales made under some form of legalcompulsion, fall within this category. SeeUnited States v. Certain Land in City of FortWorth, Texas, 414 F.2d 1029, 1031-32 (5th Cir. 1969); District of Columbia Redev. L.A.v. 61 Parcels of Land, 235 F.2d 864, 865-66 (D.C. Cir. 1956)

Another kind of sale generally inadmissible asa matter of law to prove market value is a sale to acondemning authority — state and localgovernments, utility companies, and the FederalGovernment. Summarization of the rule on thisfollows in the excerpt from the Uniform AppraisalStandards for Federal Land Acquisitions.

A-18. Price paid by a condemnor for similarproperty: These payments are a compromise toavoid the expense and uncertainty of litigation andso are not fair indications of market value. Suchevidence complicates the record, confuses theissue, is misleading, and raises collateral issues asto the conditions under which such sales weremade. The overwhelming view of the variousfederal courts is that the sum paid for similar landby an agency having condemnation authority, evenif condemnation proceedings have not begun, isinadmissible. The only recognized exceptions tothis rule are in cases of voluntary sale, or wherethe fact that the parties were condemnor andcondemnee either was not known or had noinfluence because the sale was not in connectionwith, or in anticipation of, condemnationproceedings. However, there is a small minorityview under which evidence of purchases by acondemnor is admitted on the theory that objectionto this type of evidence goes to its weight, not itscompetency.

With regard to the exception, the court inTranswestern Pipeline Co. v. O’Brien, 418 F.2d 15(5th Cir. 1969), stated:20 As are the value adjustments the appraiser

makes (or fails to make) in comparing the sale to thesubject.

The party claiming the exception bearsthe burden of proving that the comparablesales are voluntary; that is, he must showthat the sales in question were madewillingly, without coercion, compulsion, orcompromise. Sales to buyers possessingthe power of eminent domain should beadmitted as independent evidence ofmarket value only when it is certain thatthose sales truly represent the marketvalue of the land in question. Thatnecessarily means that the party relying onthe exception to the exclusion rule mustshow that the sales were uninfluenced bythe buyer's possession of the eminentdomain power. The burden is a heavyone. [Emphasis added.]

Id. at 19. The court further indicated thatconclusory statements by a landowner that saleswere voluntary and that no threats ofcondemnation were made to the vendors is notsufficient to meet the landowner’s burden. Id.

In the Final AnalysisIf pretrial motions to exclude appraisers’

testimony are unsuccessful, make the motionsagain at trial. The deficiencies in the appraiser’sevidence can be brought out and exploited oncross-examination. Rebuttal evidence can bepresented. Tailored instructions can be submitted. The most important element to have is solid,sensible, well-supported appraisal evidence for thecase-in-chief. Jurors are sensible people, and canseparate the wheat from the chaff. Trying a casein which the landowner’s appraiser testifies to apublic interest value is like trying any othercondemnation case: the side that presents the mostcredible, convincing evidence is the one that willprevail.ò


DEPARTMENT OF JUSTICEWASHINGTON, D. C.

February 1, 1951

Lands DivisionOrder No. 47

TO THE STAFF OF THE LANDS DIVISION********************

Effective today there is created the Appraisal Section for the LandsDivision. . . . All matters relating to appraisals . . . must clear through thisSection.

A. Devitt Vanech Assistant Attorney General

Appraisal Unit - Support ServicesJames D. Eaton, MAI, SRAAssistant Chief, Appraisal UnitLand Acquisition SectionEnvironment and Natural Resources Division

Much has changed since the issuance of that order. The Lands Division is now known as theEnvironment and Natural Resources Division(ENRD). Conversion of the Appraisal Section tothe Appraisal Unit within the Land AcquisitionSection (LAS) of the Division occurred in 1982. The mission of the Appraisal Unit remainsessentially the same: to provide technical supportto the government’s trial attorneys regarding realestate valuation issues. Because the AppraisalUnit contains the only appraisers employed directlyby the Department, the services provided by theunit are as varied as the lawsuits in which theUnited States is involved.

The Appraisal Unit

The ENRD appraisal unit currently consists ofthree professional appraisers, each of whom holdsan MAI (Member, Appraisal Institute) designationand is state-certified as a General Appraiser in atleast one state. Their collective professionalappraisal experience spans nearly 100 years, andconsists of both private sector and governmentservice. The breadth of this experience allows theunit to direct AUSA inquiries to an individual withspecific knowledge and experience in the subjectmatter.

What does the Appraisal Unit Do?

The primary mission of the Appraisal Unit isto provide technical appraisal review services toAUSAs and Department attorneys in eminentdomain litigation. The Appraisal Unit routes allgovernment agency condemnation requests throughthe Land Acquisition Section. Such requests mustcome with a “condemnation package” that includesthe agency’s approved condemnation appraisal ofthe property, along with the agency’s review of theappraisal and the negotiator’s diary. After review,the unit usually sends the case-filing request to theUnited States Attorney’s office in the appropriatejurisdiction for filing, and the agency’s appraisalreport is forwarded to the Appraisal Unit forreview. The reviews conducted by the Appraisal Unit arenot “typical” technical appraisal reviews, in thatthey are prepared for the litigation. The acquiringagency has formally reviewed and approved thereports received as a part of a condemnationpackage. The Appraisal Unit does not normallysecond-guess the appraiser and the agency’s fieldreviewer on issues of value, but it does evaluate thestrengths and weaknesses of the report forpurposes of litigation. While this information mayresult in technical corrective actions, it is doneunder the supervision of the assigned trial attorney.

A standard introduction used in a review of anappraisal received as a part of a condemnationpackage is set out below:

The purpose of this review is twofold. First, the intention is to insure technicalconformance with the Uniform AppraisalStandards for Federal Land Acquisitions(Washington, D.C.: U.S. GovernmentPrinting Office, 1992), and the currentUniform Standards of ProfessionalAppraisal Practice (The AppraisalFoundation) for a "complete" appraisaland a "self-contained" appraisal report,and confirm that the appraiser's estimatesof value are reasonable, based upon thedata presented. The appraiser must

correct technical deficiencies in theappraisal report. Secondly, to help theGovernment's legal counsel in preparingfor trial (and preparing the appraiser fortrial) by identifying areas within theappraisal report that, while not technically incorrect, may be weak, orinsufficient to meet the special demandscreated within the environment of acondemnation trial. Because of its dualpurpose, this review should not be shownto the appraiser.

This appraisal report has not beenreviewed for conformance with Rule26(a)(2)(B) of the Federal Rules of CivilProcedure. Therefore, government's legalcounsel should review this report forconformance with this rule, or anyapplicable alternative local rule that mayhave been adopted relating to the contentof expert witness reports.The above introduction, the wording of which

varies slightly among the reviewers in theAppraisal Unit, points out additionalcharacteristics of our special appraisal reviews. Almost as much emphasis is placed on thepotential weaknesses in the report as on thecorrectness of the final estimate of value. Valueestimates not adequately supported by theappraiser with factual market data and logicalanalysis are of little use to AUSAs who are in themidst of a condemnation trial. For that reason, the reports are reviewed from the perspective of across-examiner on the theory that AUSAs wouldrather reveal the areas of weakness in theappraiser’s analysis at an early stage, rather thanwaiting for opposing counsel to do so duringdepositions or, worse, during trial.

The introductory comments indicate thatgovernment appraisal reports are reviewed toinsure technical conformance with the UniformAppraisal Standards for Federal LandAcquisitions. These standards, often called the“Yellow Book” because of the color of its cover,


are well known in the appraisal industry and usedby all federal agencies in their land acquisitionappraisals. Any AUSA who is going to represent aclient agency in a condemnation action must befamiliar with relevant portions of this document. Not only does it describe the standards thatappraisers must follow in the development of anappraisal report for federal land acquisition, but italso cites more than 200 federal condemnationcases that form the foundation of current federalcondemnation law. For that reason alone, it is aninvaluable resource to the AUSA preparing thecondemnation case. The Uniform AppraisalStandards for Federal Land Acquisitions(Washington, D.C.: U.S. Government PrintingOffice, 1992) is available on the Department’sInternet Home Page. The Internet address toaccess the Yellow Book directly is:http://www.usdoj.gov/enrd/land-ack/. The YellowBook is in a Word Perfect 5.1 format and can bedownloaded onto a PC directly from theDepartment home page.

Another important provision in the aboveintroduction is the cautionary note that the reviewshould not be shown to the appraiser. There aremultiple reasons for this request. It has long beena LAS policy that the Appraisal Unit’s reviewersshould be free to express their opinions aboutappraisal reports without the concern that suchopinions, which are sometimes less thancomplimentary to appraisers, would be madepublic. Also, the law protects the Appraisal Unit’sreviews from discovery under the attorney work-product rule. Dissemination of the review to theappraiser could jeopardize that protection. Finally,the unit intends the appraisal review to be a toolfor the trial attorneys in the preparation of theircases. The review allows the trial counsel toconvey verbally to the appraiser corrective oradditional work required before trial, that iscompatible with the counsel’s theory of the case.

The appraisal review process described aboveis only the first step in the Appraisal Unit’s assistance in trial preparation. Experienceindicates that many appraisal reports submittedwith a client agency’s condemnation packagerequire additional work before use in trial. Thatadditional work can range from merely updating

the appraisal report to the date of taking torequiring major revision and correction. There also may be times when the appraisal report andthe appraiser are considered unsalvageable by thereviewer. In this case, it is recommended that trialcounsel consider retaining a different appraiser fortrial purposes. The Appraisal Unit is available toprovide trial counsel assistance regardingappraisers who may be suitable to counsel’s needs. Unit personnel can also assist trial counsel inassuring compliance with the Yellow Book bydeveloping special appraisal instructions.

One reason the Appraisal Unit frequently findsinitially submitted appraisal reports unsuitable fortrial purposes is that the unit conducts its reviewwith the advantage of hindsight. That is, itconducts the review in the context of a differentdate of valuation and any additional pertinent factsthat have arisen since the date of the initial report. By contrast, the earlier agency review would havebeen concerned with value as of the date of theappraisal report. In this regard, comments underStandards Rule 3-1 of the Uniform Standards ofProfessional Appraisal Practice (USPAP) providethat:

The review should be conducted in the contextof market conditions as of the effective date ofthe opinion in the report being reviewed. Information that could not have been availableto the appraiser on the date of the report beingreviewed should not be used by a reviewappraiser in the development review.

The Appraisal Unit does not follow the USPAP provisions because it is not concerned withdetermining whether the appraised value of theproperty was accurate as of the effective date ofthe appraisal, based on the information that wasavailable at the time the appraisal was prepared. The Appraisal Unit is concerned with the value ofthe property as of the date of taking, which isgenerally well after the effective date of theappraisal submitted with the condemnationpackage. Therefore, the Appraisal Unit willconsider information contained in the negotiator’sdiary, which is information that was obviouslyunavailable at the time of the original appraisal.

Often, appraisers are asked to appraise propertybefore the agency has procured a title report, butthe Appraisal Unit will consider all of theDepartment’s title report information for review. Also, there are times when the condemning agencychanges its taking between the time of its initialappraisal and the date that it sends itscondemnation package to the LAS. The AppraisalUnit conducts its review in light of the legallydescribed “estate to be taken” submitted with thecondemnation package.

Disapproval of an appraisal report by theAppraisal Unit means only that it should not beused at trial. Rejection should not be construed asmeaning that the client agency erred in its originalapproval of the report. As a practical matter, theAppraisal Unit’s only concern is whether the reportis adequate for trial purposes, based on theinformation known to the Appraisal Unit at thetime of its review. The report could have beencompletely adequate when finished and approved,but still be unusable in court. Nevertheless,reviewing an original report is often prudent for theAppraisal Unit, even if it is out of date, rather thancalling for the agency to bring the appraisal up todate before submitting the condemnation package. Then when the appraiser updates the appraisalreport, the unit can ask the appraiser to correcterrors or consider factors brought out by theAppraisal Unit’s review.

The second phase of the Appraisal Unit’sinvolvement generally comes after trial counsel hasprocured a revised appraisal report. The AppraisalUnit then reviews the revised report to assure thatthe appraiser adequately addressed any technicaldeficiencies in the initial report.

Once trial counsel determines that theappraisal report is satisfactory for trial purposes,they typically exchange it with opposing counsel,as a part of the discovery process, for the propertyowner’s appraisal report. Many AUSAs and LASattorneys also submit the owner’s appraisal reportto the Appraisal Unit for review. In those cases,the Appraisal Unit reviews the owner’s report in

the same manner as the government’s report thistime, emphasizing areas in the report that appearweak and subject to attack. The reviews also maysuggest areas of deposition inquiry, either to learnmore about the foundation and support for theappraiser’s opinion or to confirm that the witness’methodology is deficient.

AUSAs should take note of the fact that theAppraisal Unit serves a support function — not awatchdog function. We are not aware of any“rule” that requires that an AUSA must have anAppraisal Unit-approved appraisal for trialpurposes. There are occasions when the AppraisalUnit is justified in “disapproving” an appraisalreport and, at the same time, an AUSA is justifiedin using both the “disapproved” report and itsauthor for trial purposes. AUSAs merely need toassure themselves that they can justify such action,especially if trial results in an unfavorable verdict.

The volume of support services providedAUSAs and Department trial attorneys under theabove review program can be seen by theAppraisal Unit’s production figures for the pastthree fiscal years. See figure 1. The reviewresults of those reports reviewed that were subjectto approval/disapproval are shown in the chart thatfollows. See figure 2.

Major Case Support ServicesFrom the 1996-1998 data, comparison of the

mean ($4,903,277) and the median ($50,150)value of the reports reviewed by the Appraisal Unitshows that the range of just compensation betweenthe cases reviewed is substantial. That disparitybetween the mean and median clearly demonstratesthat certain cases deserve more attention andgreater support services than others, simplybecause of the dollars at stake. Although there areexceptions, such as when a small case involves asensitive or important valuation or legal issue,generally the Appraisal Unit gives the larger casesgreater attention. That greater attention oftentakes the form of support services beyond the


review of appraisal reports. Typical supportservices requested and provided include: • Translation. Legal and appraisal terms of art

may not be compatible. This often results inconfusion when AUSAs, unfamiliar with theappraisal process and legal rules applicable tocondemnation trials, try to talk with eachanother. Because members of the AppraisalUnit are professional appraisers and workdaily with attorneys who specialize incondemnation trial work, they can often act astranslators, for both the contract appraiser andthe AUSA.

• Analysis and technical evaluation of proposed

settlements;• Calculation of interest for delayed payments

on deficiencies, under the Declaration ofTaking Act. 40 USC § 258(e);

• Review and analysis of deposition testimony;• Assisting AUSA/LAS attorney in the

development of special appraiser instructions;and

• Assisting AUSA/LAS attorney in thedevelopment of appraiser/witness contractspecifications.

Non-condemnation Support ServicesBecause the three appraisers in the Appraisal

Unit are the only appraisers employed directly bythe Department, and because the Appraisal Unithistorically provides support to all Sections withinthe Division, the Unit provides a broad range ofsupport services to AUSAs, attorneys in othersections of ENRD, and attorneys in other divisionsof the Department. One of the most frequent usersof the Appraisal Unit’s support services isENRD’s General Litigation Section, which handlesthe government’s inverse condemnation cases, andother cases which often involve the question of realestate values. The Indian Resources,Environmental Enforcement, and EnvironmentalDefense Sections also avail themselves of theAppraisal Unit in cases that involve the value ofcontaminated real estate. ENRD’s Policy,Legislation, and Special Litigation Section alsouses the Unit’s consulting services in its analysis of

proposed legislation which may relate to real estatevaluation issues.Government agencies outside ENRD, andsometimes from outside the Department, requestthe Appraisal Unit’s services because of its widelyrecognized expertise in the technical aspects ofvaluation. The Department’s Civil Division TortsBranch has requested, and received, supportassistance from the Appraisal Unit in mattersrelating to the valuation of contaminatedproperties. The Unit has also provided consultingservices to the Civil Division regarding themethodologies available to estimate the marketvalue of the Nixon Papers and the location ofpotential contractors with such expertise. TheAppraisal Unit has also provided consulting andtraining services in non-condemnationmatters to many of the Department’s clientagencies, including the Bureau of LandManagement, the National Park Service, theUnited States Fish and Wildlife Service, and theUnited States Forest Service.

Why should AUSAs use Appraisal Unit supportservices?

Not only does Section 5-15-960 of theUnited States Attorney’s Manual recommend usingthe Appraisal Unit, but using these uniqueprofessional services can aid counsel in buildingthe strongest possible cases while reducing the timepersonally devoted to preparation. This can be aparticularly critical advantage, especially when thesubject of a case is highly technical in nature, andthe financial consequences of the case areextremely important.

One of the best ways to convince governmentcounsel to take advantage of the support servicesoffered by the Appraisal Unit is to cite someexamples in which the services of the Unit havecontributed significantly to the successfuloutcomes of cases.

In one case, an AUSA obtained a copy of aproperty owner’s appraisal report in the course ofdiscovery and submitted it to the Appraisal Unitfor its review before the owner’s appraiser wasdeposed. The Appraisal Unit found the appraiserhad adopted an inappropriate, uneconomic “highestand best” use for the appraised property and

estimated its value on that use. (See Kollins articleon PIV in this issue) Because of its nationalimportance to the government’s acquisitionprogram and the controversial nature of themethodology, the appraisal unit immediatelynotified the AUSA of the situation. The AUSAhad the owner’s appraiser confirm the use of themethodology during his deposition. The AUSAwas then able to prepare his defense against theowner’s theory of valuation. The trier of factultimately rejected the owner’s theory of value andentered a verdict in the amount recommended inthe government’s testimony.

Another AUSA was dissatisfied with anappraiser retained by the client agency, and theagency was reluctant to retain another appraiser. After the Appraisal Unit reviewed the appraiser’sreport and submitted a copy of its review to theclient agency, the agency agreed to considerretaining another appraiser. The AUSA, the clientagency, and a reviewer from the Appraisal Unitparticipated in interviewing potential appraisers. The three parties agreed to a suitable appraiser forthe complex appraisal assignment, and the AUSAobtained a settlement of the case favorable to thegovernment.

In another case, the LAS received an initialcondemnation package, containing both the government’s and the property owner’s appraisal. The Appraisal Unit found the government’sappraisal to be technically and logically flawed,but found the owner’s appraisal to be reasonableand well-documented. The AUSA quicklynegotiated a settlement, thereby avoiding anunnecessary and costly trial.

A public hospital sold to a private “for- profit”organization triggered the requirement that thegovernment be compensated for grant fundspreviously awarded to the hospital for building improvements, based on the value of theimprovements. The Appraisal Unit was asked toreview both the government’s and the hospital’sappraisals. The Appraisal Unit reviewer, at therequest of government counsel, attended the

depositions of both the government’s and thehospital’s appraisers. Based on the technicalreviews and the observations made at thedepositions, the Unit’s reviewer helped counsel inthe evaluation of the government’s case. As statedby the agency:

We recently agreed to a significantsettlement of our claim just short of trial. . . . In short, we could not have concludedthis case as favorably as we did without[the Appraisal Unit’s] assistance.

Conclusion The Appraisal Unit is unique in its function to

provide support to AUSAs and Department trialattorneys in the preparation of their cases thatinvolve real estate valuation matters. Contact amember of the Appraisal Unit as follows:

• Brian Holly, MAI, — Ch. AppraiserPhone:(202) 305-0285Fax:(202) 305-8273email:[email protected]

• Jim Eaton, MAI, SRA — Asst. Ch. AppraiserPhone:(360) 582-0038Fax:(360) 582-0048email:[email protected]

• Larry Ragels, ARAPhone: (202) 305-0426Fax:(202) 305-8273email:[email protected] ò


(27.4%)

(2.3%)

(24.5%)

(39.5%)

(6.3%)

Approved

Update required

Minor Revision

Major Revision

Unsalvageable

Review Results

FiscalYear

No. ofReviews

AppraisedValues

JustCompensation

Mean Just Comp.

MedianJust Comp.

1996 311 $3,120,509,010 $2,873,329,146 $9,064,130 $130,300

1997 351 $1,318,480,693 $837,607,037 $2,372,824 $42,500

1998 370 $1,557,503,778 $1,388,934,706 $3,753,878 $29,463

Total 1,032 $6,106,493,481 $5,099,870,889 $4,903,722 $50,150

Mean 344 $5,387,675 $4,903,722

Median 351 $127,000 $50,150

Figure 1

Figure 2

Based on your survey responses, we are beginning a series on trial advocacy in the next issue of theUnited States Attorneys' Bulletin. The first part of the series is devoted to cross-examination andimpeachment. In this issue you will also get to meet Mary H. Murguia, the new director of the ExecutiveOffice for United States Attorneys. Ms. Murguia enjoyed a distinguished career as a state prosecutor inKansas and as an Assistant United States Attorney for the District of Arizona before becoming PrincipalDeputy Director of EOUSA. In September, 1999, she assumed her current position as Director of EOUSA. In the featured interview she shares her view of the role of EOUSA, and highlights some of the significantissues currently facing us.

February 2000 Volume 48 Number 1 - Justice Goldfrank ..... 7 Role of the Policy, Legislation, and...

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