The General Litigation Section supervises and conducts litigation
arising under several different classes of statutes, described below, and also
under treaties and agreements with Indians, Executive Orders, common law, and the
laws of various states. The listing is not exhaustive, but illustrative, and
contains the primary statutes under which litigation arises.
- Civil construction and operation of projects and
facilities.
Chief among these statutes are: 1) the Federal-Aid Highway Act
of 1958, 72 Stat. 885, as amended, 23 U.S.C. Sec. 101 et seq., 2) Flood
Control Act of 1938, 52 Stat. 1215, as amended, 33 U.S.C. Sec. 701b et
seq., and other civil works authorities of the U.S. Army Corps of Engineers,
some of which are codified at 33 U.S.C. Sec. 540 et seq.; 3) Airport and
Airway Development Act of 1970, 84 Stat. 220, as amended, 49 U.S.C. Sec.
1711 et seq.; Housing and Community Development Act of 1974, 88 Stat.
633, 42 U.S.C. Sec. 5301 et seq.
National Environmental Policy Act and similar procedural and review
statutes. Regardless of the agency involved: 1) the National Environmental
Policy Act of 1969, 42 U.S.C. Sec. 4321 et seq.; 2) the National Historic
Preservation Act of 1966, as amended, 16 U.S.C. Sec. 470 et seq. (for all
such cases, see USAM 5-7.300); and 3)
Fish and Wildlife Coordination Act, 16 U.S.C. Secs. 661 to 666c, except sec. 666a
(see USAM 5-10.120).
Federal Land Management. The statutes under which the Bureau of Land
Management, the Forest Service, the Fish and Wildlife Service and the National
Park Service administer lands and resources under their jurisdiction, excepting
those matters related to wildlife management delegated to the Wildlife and Marine
Resources Section (see USAM 5-10.100).
Chief among these statutes are: 1) (Bureau of Land Management) Federal Land
Policy and Management Act, 43 U.S.C. Sec. 1701 et seq., Taylor Grazing Act
of 1934, 43 U.S.C. Sec. 315 et seq.; 2) (Forest Service) "Organic Act of
1897", 16 U.S.C. Sec. 471 et seq., Weeks Act of 1911 (eastern acquired
lands forests), found in part at 16 U.S.C. Secs. 513 to 519, 36 Stat. 961,
National Forest Management Act, 16 U.S.C. Sec. 1601 et seq.; 3) (Fish and
Wildlife Service) National Wildlife Refuge System Administration Act, as amended,
16 U.S.C. Secs. 668dd and 668ee; 4) (Na
tional Park Service) National Park Service Act, 16 U.S.C. Secs. 1 to 4, and the
authorizing statutes for individual units of the National Park System, 16 U.S.C.
Secs. 21 through 460mm, and the Historic Sites, Buildings and Antiquities Act of
1935, 16 U.S.C. Secs. 461 to 467.
Mineral exploration and development. Statutes governing mineral
activity on federal lands: 1) General Mining Law of 1872, as amended, 30
U.S.C. Sec. 22 et seq., 2) Mineral Leasing Act of 1920, as amended,
30 U.S.C. Sec. 181 et seq., 3) Mineral Leasing Act for Acquired Lands, 30
U.S.C. Sec. 351 et seq., 4) Outer Continental Shelf Lands Act, 43 U.S.C.
Sec. 1331 et seq., 5) Federal Oil and Gas Royalty Management Act of 1982,
30 U.S.C. Sec. 1701 et seq.
Indian cases. 1) Suits by Indian tribes, individuals or allottees
against the United States under treaties and agreements with Indians, and in the
administration of statutes governing Indian lands, Indian resources, Indian
assistance programs, and actions with respect to tribal self-government, and 2)
Alaska Native Claims Settlement Act, 43 U.S.C. Sec. 1601 et seq.
Water Rights and Projects. 1) Reclamation Act of 1902, as
amended, 43 U.S.C. Sec. 431 et seq., and other project authorizations
of the Bureau of Reclamation; and 2) McCarran Act of 1952, 43 U.S.C. Sec. 666,
involving adjudication of federal water rights in state courts, except for Indian
water rights (see USAM 5-5.100).
Boundaries, Quiet Title and Navigation. 1) Quiet Title Act, as
amended, 28 U.S.C. Sec. 2409a, including suits by states regarding
navigability under the Equal Footing doctrine, 2) Sections 9 and 11 of the Rivers
and Harbors Act of 1899, 33 U.S.C. Secs. 401, 404, and 3) Submerged Lands Act of
1953, 43 U.S.C. Sec. 1301 et seq.
Other statutes of general applicability. 1) Tucker Act, 28 U.S.C.
Secs. 1346(a)(2) and 1491 (for all matters within the responsibility of the
Environment and Natural Resources Division (USAM
5-1.100)), 2) Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
Sec. 1201 et seq., 3) Coastal Zone Management Act, 16 U.S.C. Sec. 1415
et seq., 4) Alaska National Interest Lands Conservation Act of 1980,
Pub.L. No. 96-487, and 5) Wilderness Act of 1964, 16 U.S.C. Sec. 1131 et
seq.
The Section is administered by a Chief, a Deputy Chief, and three
Assistant Chiefs. Information related to any matter in the section may be sought
by calling any of these five at 202-305-0440. The work load is assigned
according to experience, expertise and workload. The section has distributed to
United States Attorneys' offices a listing of the expertise of section personnel.
Information on a specific case should be sought from the attorney assigned.
Information on case assignment is available from the docket clerk, 202-305-0489.
- National Historic Preservation Act.
The Department of
Justice has agreed, pursuant to 16 U.S.C. Sec. 470k, to notify the Advisory
Council on Historic Preservation of all cases involving the National Historic
Preservation Act, 16 U.S.C. Sec. 470 et seq., or regulations promulgated
thereunder (36 C.F.R. Part 800). The Advisory Council will rarely be a party to
the litigation, but the Council is charged, inter alia , with advising the
President and Congress on matters relating to historic preservation and with
reviewing federal, federally assisted, and federally licensed undertakings
affecting cultural properties.
Many of these cases involve proposed alterations to, or demolition of,
historic structures, and may originate as temporary restraining orders. It is
especially important, therefore, that the Section receive early notice of these
cases, so that it can then notify the Advisory Council. Accordingly, upon
receipt of any complaint raising an issue under the National Historic
Preservation Act, the United States Attorney's Office should call the attorney
assigned to the case in the Department of Justice in Washington, D.C. who will
then notify the Council. Most of the cases involving the Act or regulations are
within the jurisdiction of the General Litigation Section, Environment and
Natural Resources Division, 202-305-0440. In the event a request for a temporary
restraining order is filed before the case is assigned to a General Litigation
attorney, the Chief of that Section should be notified.
Biotechnology Litigation. Litigation involving biotechnology and its
environmental implications is handled in the Environment and Natural Resources
Division. Within the Division, the cases -- whether filed by complaints in the
district courts or by petitions for review in the courts of appeals -- are
assigned to a team of attorneys from the Division, usually from the General
Litigation Section (see USAM 5-7.120),
Environmental Defense Section (see USAM
5-6.130), or the Wildlife and Marine Resources Section (see USAM 5-10.120), as appropriate, depending on the
statutes identified and claims raised. If such litigation is filed in your
district, please contact the chief of any of the above-stated sections who will
contact the other appropriate sections.
The authority of United States Attorneys to initiate cases under the
supervision of the General Litigation Section is set forth in USAM 5-1.310.
No action for the recovery of money only shall be instituted unless the
referring agency supplies satisfactory proof that a judgment, if recovered, would
be collectible.
United States Attorneys are hereby authorized to act in the following
matters, in response to service on the United States, without assignment of the
case from the Environment and Natural Resources Division, in the following cases:
- Actions under 28 U.S.C. Sec. 2410 affecting property in which the
United States has a lien, except where the lien is a tax lien. See Title
6-TAX DIVISION, USAM. See also Environment and Natural Resources Division
Directive No. 9-68 (August 5, 1968): "Procedure for the Handling of Condemnation
Actions against the United States under or purportedly under Title 28 U.S.C. Sec.
2410."
- Suits for judicial review of decisions of the Department of the Interior
regarding the probate or estate administration of deceased Indians' interests in
trust or allotted land.
- Actions to recover possession of, or quiet title to, property from tenants,
squatters, trespassers, or others, and actions to enjoin trespasses on federal
property.
- Actions to collect costs of Forest Fire suppression and other damages
resulting from such fires.
Responsibility for the handling of cases under the supervision of the
General Litigation Section is assigned by the Chief of the Section under the
provisions of USAM 5-1.326.
Except for cases authorized to be filed by USAM 5-1.310 no case under the supervision of the
General Litigation Section may be initiated by a United States Attorney without
the prior authorization of the Assistant Attorney General.
The general instructions set forth in USAM
5-5.100 et seq., with respect to the handling of litigation apply in
every respect to the litigation of the General Litigation Section. Particularly,
it is of the utmost importance that complaints filed against the federal
government and federal officials in matters relating to the area of
responsibility of the General Litigation Section be transmitted promptly to the
Chief of the Section.
Whenever required by the nature of the case, the attorney assigned to
the case shall, or assure that the agency shall, file or record a notice of the
pendency of the action or lis pendens among the proper local records, except in
those jurisdictions where the law is settled that the commencement of the action
is notice to all persons affected.
United States Attorneys should note and comply with the instructions
relating to the recording, collection and enforcement of judgments set forth in
USAM 5-5.151 through 5-5.156.
Except with respect to direct referral cases (discussed in USAM 5-7.630) no claim or case under the
jurisdiction of the General Litigation Section may be settled or dismissed
without specific or delegated authority from the Assistant Attorney General.
See USAM 5-5.210 et seq.
Any offer to settle or dismiss an action shall be transmitted to the
Chief of the General Litigation Section for referral to the Assistant Attorney
General or for such other action as may be directed by regulation. Such offers
should be accompanied by the written comments and recommendation of the referring
agency and the United States Attorney. In emergency situations, such as with
settlement offers received during trial, settlement offers dealing exclusively
with monetary damages or penalties may be communicated to the Chief of the
General Litigation Section by telephone.
The recommendation should be guided by the principles that compromise
offers cannot be accepted unless (a) there is doubt as to whether judgment can
be secured for an amount larger than that offered or (b) because the probable
cost of collection exceeds the difference between the amount offered and the
amount recoverable.
The authority of United States Attorneys to settle or dismiss direct
referral cases under the supervision of the General Litigation Section is set
forth in USAM 5-5.230.
| September 1997
| USAM Chapter 5-7
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