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# 5-1.000 - Policy

5-1.100 | General Policy and Responsibilities
5-1.200 | Litigation Involving the Environmental Protection Agency (EPA)
5-1.300 | Supervision and Handling of ENRD—Generally
5-1.301 | Overlapping Section Case Responsibility
5-1.302 | Pleadings To Be Signed by the Assistant Attorney General
5-1.310 | Authority of United States Attorneys to Initiate Civil Actions Without Prior Authorization, i.e., Direct Referral Cases
5-1.320 | Civil Actions Not Subject to Direct Referral to United States Attorneys
5-1.322 | Assignment of Civil Actions—Generally
5-1.323 | Cases Assigned to United States Attorneys
5-1.324 | Cases Assigned as a Joint Responsibility
5-1.325 | Cases for Which the Division Is Assigned Responsibility
5-1.326 | Review and Change of Case Assignments

## 5-1.100 - General Policy and Responsibilities

The Environment and Natural Resources Division (Division or ENRD), which was created in 1909 (as the Public Lands Division), represents the United States, its agencies and officials in matters relating to environmental quality; public lands and natural resources; Indian lands, rights and claims; and wildlife and fishery resources. The Division's responsibilities are varied and include both enforcement and defensive work, in both criminal and civil cases.

More specifically, responsibilities of ENRD are set forth in 28 C.F.R. § 0.65 and include the statutes and subject-matter areas listed for each section of ENRD in JM 5-6.000 to 5-15.000. ENRD documents reflecting Division policies and practices that will assist United States Attorneys (e.g., Division directives, Division memoranda, etc.) are identified in the ENRD Resource Manual.

[cited in JM 5-12.500; JM 5-7.120; JM 5-10.500]

[Updated May 2018]

## 5-1.200 - Litigation Involving the Environmental Protection Agency (EPA)

With respect to any matter assigned to ENRD in which the EPA is a party, the Assistant Attorney General in charge of the Environment and Natural Resources Division, and such staff as he/she may specifically designate in writing, are authorized to exercise the functions and responsibilities undertaken by the Attorney General in the Memorandum of Understanding dated June 15, 1977, between the Department and the EPA (42 Fed. Reg. 48942) and all such litigation must be conducted in accordance with ENRD Directive No. 2016-04, Part I.E.

[Updated April 2018]

## 5-1.300 - Supervision and Handling of Environment and Natural Resources Division Cases—Generally

All cases within the area of responsibility of ENRD are subject to the supervision and control of the Assistant Attorney General in charge of the Environment and Natural Resources Division. The responsibilities for handling of cases are divided into four general classifications: (1) cases for which authority has been delegated to the United States Attorneys which may be directly referred to him/her by an authorized field officer or a federal department or agency, see JM 5-1.310; (2) cases which are delegated to the United States Attorneys by the Assistant Attorney General, see JM 5-1.323; (3) cases which the Assistant Attorney General of the Division determines shall be the joint responsibility of the Division and the United States Attorney, see JM 5-1.324; and (4) cases for which the Division retains primary responsibility, see JM 5-1.325.

[cited in JM 5-5.210; JM 5-5.230]

[Updated April 2018]

## 5-1.301-Overlapping Section Case Responsibility

Occasionally cases occur which involve statutes for which more than one Section of ENRD is responsible. In each such case, the Chiefs of the respective sections will designate the section which will assume the primary responsibility. The designated section will coordinate with any other concerned section, will furnish copies of all pertinent pleadings and memoranda to that section, and will notify the United States Attorney of the names and contact information of attorneys in the other sections who may be contacted for information in their areas of expertise.

[added April 2018]

## 5-1.302 - Pleadings To Be Signed by the Assistant Attorney General

In all civil cases where the United States is a plaintiff–other than direct referral cases, see JM 5-1.310, and specific cases or classes of cases the Assistant Attorney General exempts from this requirement (see ENRD Directive Nos. 2016-04, 2017-07)–arising from matters in the litigating sections, all complaints, consent decrees and other agreements for entry of judgment or dismissal must be approved prior to filing, by the Assistant Attorney General, unless otherwise expressly delegated.

[cited in JM 5-6.321; JM 5-8.600; JM 5-9.321; JM 5-10.321]

[Updated April 2018]

## 5-1.310 - Authority of United States Attorneys to Initiate Civil Actions Without Prior Authorization, i.e., Direct Referral Cases

Civil actions which may be initiated by the United States Attorneys without prior authorization from ENRD are listed in ENRD Directive No. 2016-04, Part I.

[Updated April 2018]

## 5-1.320 - Actions Not Subject to Direct Referral to United States Attorneys

Sections 5-1.322 through 5-1.326 discuss the civil actions not subject to direct referral to United States Attorneys.

[cited in JM 5-12.111; JM 5-12.320]

[Updated April 2018]

## 5-1.322 - Assignment of Civil Actions—Generally

All cases which are not subject to direct referral to the United States Attorneys as set forth in JM 5-1.310 are initially referred to the Assistant Attorney General for review and case assignment. Except where determined otherwise by the Assistant Attorney General, such determinations are made by the appropriate Section of the Division. In accordance with ENRD Directive No. 2016-04, Part I.D, certain cases not subject to direct referral may be delegated to the United States Attorney pursuant to a written request from the United States Attorney or as delegated in writing by the appropriate Section Chief of the Division. Certain cases may also be assigned as the joint responsibility of the United States Attorney and the Division. See JM 5-1.324.

[cited in JM 5-6.321; JM 5-9.320; JM 5-10.320]

[Updated April 2018]

## 5-1.323 - Cases Assigned to United States Attorney

Assignment of case responsibility to the United States Attorney is always with the understanding that the Assistant Attorney General of the Division has supervisory responsibility on behalf of the Attorney General over all litigation under the jurisdiction of the Division.

The United States Attorney shall be primarily responsible for all cases assigned to him/her. If a United States Attorney thinks that he/she cannot accept responsibility by reason of a conflict of interest, the lack of personnel or expertise in the office, or other good reasons, he/she should immediately consult with the Chief of the appropriate Section to determine if some other assignment of responsibility can be made.

Regular communication should be maintained with the appropriate Section of the Division regarding the conduct of litigation assigned to the United States Attorneys, especially if any problems arise in connection with a case. The Division is organized so as to maintain considerable expertise in the particular subject matter areas under the jurisdiction of the Division and can provide valuable assistance to the United States Attorney, including assistance in preparing pleadings and briefs as well as providing advice on the substantive law and the handling of litigation. A copy of the final order entered in any case must be transmitted promptly to the appropriate Section of the Division.

[cited in JM 5-1.300; JM 5-1.322; JM 5-1.324; JM 5-6.302]

[Updated April 2018]

## 5-1.324 - Cases Assigned as a Joint Responsibility

If the appropriate Section of the Division thinks that a given case should be handled as a joint responsibility of the United States Attorney and the Division, the Chief of the Section shall make the assignment initially with a written description of the expected division of work and responsibility for the case. In the event the United States Attorney involved is not satisfied with the assignment, he/she shall consult with the appropriate Section Chief to resolve the assignment and/or division of responsibility. Any remaining differences will be resolved by the Assistant Attorney General of the Division. At least nine months before trial, a firm understanding will be reached between the Division and the United States Attorney on trial responsibility. Either the Division or the United States Attorney may request a change in the assignment at any time. The Division will periodically review all joint responsibility assignments with the objective that where Division assistance is no longer required the case may be assigned to the United States Attorney under JM 5-1.323.

[cited in JM 5-1.300; JM 5-1.322; JM 5-1.323; JM 5-15.322]

[Updated April 2018]

## 5-1.325 - Cases for Which the Division Is Assigned Responsibility

Each Section of the Division has established practices regarding the coordination of litigation with the appropriate United States Attorney Office. Any differences over such case assignments and the provision of support services will be resolved by the Assistant Attorney General in charge of the Division.

[cited in JM 5-1.300; JM 5-1.322; JM 5-1.323; JM 5-6.302; JM 5-6.321]

[Updated April 2018]

## 5-1.326 - Review and Change of Case Assignments

The assignment of case responsibility to the United States Attorney may be reviewed at any time at the request of the United States Attorney, the client agency, or the appropriate Section, and may be changed; a change of assignment will only be made, however, after consultation with the United States Attorney. Any differences concerning assignment or handling of cases will be resolved by the Assistant Attorney General of the Division.

[cited in JM 5-7.320; JM 5-9.320]

[Updated April 2018]

Updated September 19, 2018