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Sisseton-Wahpeton Oyate of Lake Traverse Reservation v. United States Corps of Engineers

United States District Court, D. South Dakota, Central Division

September 18, 2014

SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION and ROBERT SHEPHERD, Chairman, Plaintiffs,
v.
UNITED STATES CORPS OF ENGINEERS; STEVEN E. NAYLOR, in his official capacity as Regulatory Program Manager; and ROBERT J. RUCH, in his official capacity as District Commander, Defendants.

OPINION AND ORDER CONCERNING PARTIAL DISMISSAL OF PLAINTIFFS' COMPLAINT AND SCHEDULING OF TRIAL

ROBERTO A. LANG, District Judge.

I. Introduction

Plaintiffs Sisseton-Wahpeton Oyate of the Lake Traverse Reservation (the Tribe) and Robert Shepherd (Shepherd), the Tribe's chairman, filed a Complaint and Amended Complaint seeking declaratory, injunctive, and other relief. Doc. I; Doc. 16. Plaintiffs named as Defendants the United States Corps of Engineers (the Corps), Steven E. Naylor (Naylor), in his official capacity as Regulatory Program Manager, and Robert J. Ruch, in his official capacity as District Commander. Plaintiffs' Complaint challenges the Corps' granting of certain § 404 exemptions and Nationwide Permits to Merlyn Drake (Drake) and how it has dealt generally with Drake's requests and conduct on land adjacent to Enemy Swim Lake, which is within the exterior boundaries of the Tribe's reservation. The Defendants filed a Motion for Partial Dismissal of Plaintiffs' Amended Complaint, Doc. 26, which this Court addressed through a prior Opinion and Order Granting in Part and Denying in Part Motion for Dismissal. Doc. 32.

In that prior Opinion and Order, this Court wrestled with whether some of the Plaintiffs' claims were barred by the six-year statute of limitations based on what the Tribe learned from a meeting on January 25, 2005, about the Corps' decision making regarding Drake's requests. This Court, among other things, granted Defendants' Motion for Partial Dismissal of Plaintiffs' Amended Complaint "as to any and all Counts and claims challenging [Defendants'] exemptions and Nationwide Permit determinations that were discussed during the January 25, 2005 meeting as having been granted, authorized, or determined." Doc. 32 at 22. This Court's ruling was couched in such language because:

The evidence of what occurred at the January of 2005 meeting is in dispute, but the Tribe appears to have received information about the Corps' permits and exemptions to Drake sufficient to start the running of the statute of limitations from the January 25, 2005 meeting as to those permits and exemptions discussed at the meeting as being finally determined. This Court cannot determine exactly which permits and exemptions were discussed in such a manner, without hearing evidence and evaluating the memory and credibility of witnesses. The Plaintiffs filed their Complaint on November 7, 2011, Doc. 1, after the running of the six year statute of limitations for those permits and exemptions discussed on January 25, 2005, as having been granted, authorized, or determined.

Doc. 32 at 13. After issuing that Opinion and Order, this Court held two evidentiary hearings and allowed the parties to file additional briefing. This Court now rules on the issue left open in the prior Opinion and Order.

II. Legal Standard

Plaintiffs' action against the Defendants is brought pursuant to the Administrative Procedures Act, under which the United States has waived sovereign immunity on behalf of agencies such as the Corps. 5 U.S.C. § 702 (2012). Such suits, however, "shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a); see Izaak Walton League of Am., Inc. v. Kimbell , 558 F.3d 751, 758-59 (8th Cir. 2009) (applying six-year statute of limitations to an Administrative Procedures Act case).

A claim against a governmental agency first accrues "on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action." Izaak Walton , 558 F.3d at 759 (quoting Chandler v. U, S. Air Force , 255 F.3d 919, 921 (8th Cir. 2001)). "A cause of action accrues when there are facts enabling one party to maintain an action against another." Victor Foods, Inc. v. Crossroads Econ. Dev. of St. Charles Cnty., Inc. , 977 F.2d 1224, 1226 (8th Cir. 1992) (per curiam). With regard specifically to § 2401(a), "a claim accrues when the plaintiff either knew, or in the exercise of reasonable diligence should have known, that [he or she] had a claim.'" Andersen v. U.S. Dep't of Hous. & Urban Dev. , 678 F.3d 626, 629 (8th Cir. 2012) (quoting Izaac Walton , 558 F.3d at 759); see also Loudner v. United States , 108 F.3d 896, 900 (8th Cir. 1997). Because a statute of limitations in an Administrative Procedure Act case is a jurisdictional limitation, "the plaintiff will have the burden of proof that jurisdiction does in fact exist." Osborn v. United States , 918 F.2d 724, 730 (8th Cir. 1990) (citation omitted); Runs After v. United States, No. CIV 10-3019-RAL, 2012 WL 2951556, at *6 (D.S.D. July 19, 2012).

III. Material Facts Regarding Tribe's Knowledge

It is an issue of fact to determine whether the Plaintiffs "knew, or in the exercise of reasonable diligence should have known, that [they] had a claim" at the time of and as a result from the January 25, 2005 meeting. See Izaac Walton , 558 F.3d at 759. The Corps had issued two exemptions and two Nationwide Permit it findings to Drake prior to the January 25, 2005 meeting. The Corps had not furnished the Tribe or any of its representatives with any of the two exemption letters or two Nationwide Permit letters. Thus, what occurred at the January 25, 2005, meeting is pivotal to determining if the Tribe knew or should have known that it had a claim regarding the Corps' actions at that time.

A. Background and Corps' Decisions

Some background is required to understand the Corps' actions and the setting of the January 2005 meeting. In or around 1993, Drake, who is not a tribal member, bought a home on Enemy Swim Lake in an area to the south of Enemy Swim Creek. Doc. 45 at 84-85. The mouth of Enemy Swim Creek is sometimes called an inlet of Enemy Swim Lake. In or around 1996, Drake purchased agricultural land near his lake home that included land on either side of Enemy Swim Creek and its inlet to Enemy Swim Lake. Doc. 45 at 85.

The Tribe considers Enemy Swim Lake to be of tremendous cultural and religious significance. Doc. 16 at ¶ 2. There are burial grounds at or near the lake, plants from the lake are used in ceremonies for medicinal purposes, some tribal members catch fish for sustenance from the lake, and some tribal members consider Enemy Swim Lake to ...


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