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Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. United States Corps of Eng'rs

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

August 18, 2015

SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION; and ROBERT SHEPHERD, CHAIRMAN, Plaintiffs,
v.
UNITED STATES CORPS OF ENGINEERS; ROBERT J. RUCH, IN HIS OFFICIAL CAPACITY AS DISTRICT COMMANDER; and STEVEN E. NAYLOR, IN HIS OFFICIAL CAPACITY AS REGULATORY PROGRAM MANAGER, Defendants

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          For Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, Robert Shepherd, Chairman, Plaintiffs: Debra Caroline Flute, Sisseton-Wahpeton Oyate, Agency Village, SD; Gregory Scott Paulson, Kurt V. BlueDog, PRO HAC VICE, BlueDog, Paulson & Small, Minneapolis, MN; Richard Alan Duncan, PRO HAC VICE, Faegre Baker Daniels LLP, Minneapolis, MN.

         For United States Corps of Engineers, Steven E. Naylor, in his official capacity as Regulatory Program Manager, Robert J. Ruch, in his official capacity as District Commander, Defendants: David A. Carson, LEAD ATTORNEY, United States Department of Justice, Environment and Natural Resources Division, Denver, CO; Jody Helen Schwarz, U.S. Department of Justice, ENRD, Environmental Enforcement Section, Washington, DC.

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          OPINION AND ORDER ON PENDING MOTIONS

         ROBERTO A. LANGE, UNITED STATES DISTRICT JUGDE.

         Sisseton-Wahpeton Oyate of the Lake Traverse Reservation and Robert Shepherd, the Tribe's chairman at the time this lawsuit started (collectively, " the Tribe" ), filed a Complaint for declaratory, injunctive, and other relief. Doc. 1. Plaintiffs named as Defendants the United States Corps of Engineers, Robert J. Ruch, in his official capacity as district commander, and Steven E. Naylor, in his official capacity as regulatory program manager (collectively, " the Corps" ). This Court granted in part Defendants' Motion to Dismiss for Lack of Jurisdiction, Docs. 32, 69, ordered the Defendants to file the Administrative Record (AR), and set a briefing schedule, Doc. 71.

         On February 5, 2015, the Tribe filed a Motion to Compel Production of the Whole Administrative Record. Doc. 73. On March 10, the Tribe filed a separate Motion to Supplement the Administrative Record. Doc. 77. On May 28, the Tribe filed a Motion to Reconsider Equitable Tolling Based Upon Intervening Authority. Doc. 81. The Defendants opposed all motions in separate briefs. Docs. 76, 79, 84. For the reasons explained below, the Motion to Compel Production is denied, the Motion to Supplement the Record is granted in part, and the Motion to Reconsider is denied.

         I. FACTS

         The circumstances leading to this case are described in greater detail in this Court's previous opinions regarding the motion to dismiss, Docs. 32, 69, but a brief history of the case helps in understanding the issues framed by the pending motions. The case revolves around what the Tribe views as a potential commercial development project adversely affecting Enemy Swim Lake in northeastern South Dakota,

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which Defendants have allegedly improperly permitted to occur under the guise of agricultural projects.

         Merlyn Drake (Drake), who is not a member of the Tribe, owns land adjoining Enemy Swim Lake. Doc. 32 at 2. Drake has engaged in certain road and bridge construction activities in wetland areas adjacent to the lake, along the shore of the lake, and across a stream feeding into the lake. Doc. 32 at 2-3. In response to inquiries from Drake prior to the construction activities, the Corps sent a series of communications to Drake deeming that his construction activities did not require individual discharge permits under the Clean Water Act[1] (CWA) because, as proposed, they were either exempt from CWA regulation altogether or authorized under a Nationwide General Permit (Nationwide Permit). Doc. 32 at 3-5.

         The Tribe owns land around Enemy Swim Lake, which has cultural and religious significance to the Tribe. Doc. 32 at 2. The Tribe and others in the area became concerned about Drake's activities on his lakeshore property, and in January 2005, the office of then United States Senator Tim Johnson organized a meeting to address those concerns at the Day County Courthouse in Webster, South Dakota. Doc. 32 at 4. At that meeting, tribal officials in attendance became aware of four prior Corps determinations (made on August 18, 1998, June 6, 2000, December 2, 2003, and December 4, 2003), Doc. 32 at 3-4, that Drake's activities did not require individual discharge permits. Doc. 69 at 16-17.

         The Corps later made two more determinations that Drake need not acquire individual discharge permits for certain activities on his lakeshore property. Doc. 32 at 4-5. On May 1, 2006, the Corps informed Drake through a letter that a proposed bridge across the primary inlet tributary to Enemy Swim Lake was exempt from CWA permitting as a farm road, and on May 4, 2009, the Corps informed Drake through a letter that another proposed crossing of wetlands north of the inlet utilizing culverts was authorized under a Nationwide Permit. Doc. 32 at 4-5.

         In 2009, the Tribe made a Freedom of Information Act (FOIA) request regarding the Corps' dealings with Drake and received responsive documents. Doc. 16 at 3; Doc. 18 at 2. In 2009 and 2010, the Tribe and the Corps exchanged several letters. On June 15, 2009, the Tribe asked the Corps to withdraw its determinations that some of Drake's activities were exempt and others were authorized by the Nationwide Permits. Doc. 32 at 5. On August 30, 2010, the Corps wrote a letter to the Tribe explaining the bases for the Corps' exemption and Nationwide Permit decisions and why it continued to believe its decisions were correct. Doc. 32 at 5.

         The Tribe's complaint against the Corps sought judicial review of various Corps actions (and failures to take action) under the Administrative Procedure Act (APA), 5 U.S.C. § § 701-06. This Court granted in part the Corps' motion to dismiss in an Opinion and Order dismissing " any and all Counts and claims challenging Corps' exemption and Nationwide Permit determinations that were discussed during the January 25, 2005 meeting as having been granted, authorized, or determined" because they were barred by the statute of limitations. Doc. 32 at 22. Following two evidentiary hearings, this Court concluded that the determinations made on August 18, 1998, June 6, 2000, December 2, 2003, and December 4, 2003, were final and known to tribal officials as a part of the

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January 25, 2005 meeting, and thus the Tribe's challenges to those determinations were time barred. Doc. 69 at 17. The Tribe's claims challenging the " Corps' decisions not to modify, suspend, or revoke those determinations" were dismissed as non-justiciable. Doc. 32 at 22; Doc. 69 at 17. This Court also dismissed all claims the viability of which hinged upon the Tribe's assertion of the August 30, 2010 letter being the sole final agency action. Doc. 32 at 22.

         On January 8, 2015, the Defendants filed a compact disc, which contains 756 individual, often multiple-page documents, that the Corps certified as the administrative record relevant to remaining claims. Docs. 72, 72-1. The Tribe then filed its Motion to Compel the Whole Administrative Record, Doc. 73, and its Motion to Supplement the Administrative Record. Doc. 77. On May 28, 2015, the Tribe filed its Motion to Reconsider, requesting that this Court reconsider its previous decision that the statute of limitations in this case, 28 U.S.C. § 2401(a), is not subject to equitable tolling because it is jurisdictional. Doc. 81 at 1-2.

         II. ANALYSIS

         A. Remaining Claims

         Some of the dispute over the motion to compel and motion to supplement the record revolves around a disagreement between the parties about what claims remain after this Court's prior orders granting in part the motion to dismiss. The claims dismissed by this Court fell within three categories: (1) final determinations on which the statute of limitations has run; (2) claims that depend upon characterizing the August 30, 2010 letter from the Corps to the Tribe as a final agency action; and (3) non-justiciable enforcement decisions " not to modify, suspend or revoke a Section 404 permit," Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Eng'rs, 918 F.Supp.2d 962, 970-74 (D.S.D. 2013) (quoting Mo. Coal, for the Env'tv. Corps of Eng'rs, 866 F.2d 1025, 1032 n.10 (8th Cir. 1989)).

         Both parties agree that the Corps' May 1, 2006 determination of Drake's activities being exempt from CWA discharges permit requirements and the Corps' May 4, 2009 determination of Drake's activities being authorized under a Nationwide Permit are final agency actions taken within the statute of limitations period. See Doc. 76 at 3. The challenges to those two determinations remain active. The Defendants argue that those two claims are the only claims that remain. Doc. 76 at 3. Thus, Defendants argue they have provided the whole administrative record relevant to those claims and have no obligation to provide any additional materials. Doc. 76 at 1. In contrast, the Tribe takes the position that its claims " pertaining to Recapture (Count 4), Best Management Practices (Count 5), and Stacking (Count 7)," as well as its National Historic Preservation Act (NHPA) claim (Count 8) and others, survive as claims challenging agency inaction and are not fixed at a single point in time. Doc. 73 at 4; Doc. 78 at 1-2. Thus, the Tribe argues, the Corps has an obligation to turn over records pertaining to all of Drake's activities near Enemy Swim Lake, including information received after the final Nationwide Permit verification, because that information is relevant to alleged decisions not to act. Doc. 78

         Prior to the January 18, 2013 order on the motion for partial dismissal, the Tribe had argued that the Corps had not taken final action on the Drake projects until the Corps issued the letter to the Tribe on August 30, 2010, and thus the letters to Drake notifying him that his projects did not require individual permits were merely preliminary decisions. Doc. 16 at 23-32;

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Doc. 29 at 18-20. The Tribe's original recapture claim, Count 4, explicitly challenged what the Tribe characterized as " the [Corps'] final decision in 2010 that Drake's activities have not been recaptured under the [CWA]." Doc. 16 at 27; Doc. 29 at 19-20. Similarly, the best management practices claim and the allegations regarding Drake's fill of a small spring feeding Enemy Swan Lake challenged what the Tribe claimed to be a final decision in the August 30, 2010 letter. Doc. 16 at 27-28; Doc. 29 at 20. This Court rejected the argument that the August 2010 letter was the final decision and determined that the individual verifications from the Corps notifying Drake that his proposed projects did not require individual discharge permits were final agency actions for purposes of a challenge under the APA. Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, 918 F.Supp.2d at 972; see also 5 U.S.C. § 704 (making final agency action subject to judicial review).

         For the present motion, however, the Tribe has re-characterized most of its claims as failure-to-act claims not restricted to a single point in time. Doc. 73 at 4-5; Doc. 78 at 3. In essence, the Tribe now is arguing that the Corps was required to make a new regulatory determination with regard to all of Drake's previous projects when it received information that could lead to the conclusion that Drake was engaged in non-farming activities. Doc. 78 at 1-2 (" The Tribe's claims pertaining to Recapture (Count 4), Best Management Practices (Count 5), and Stacking (Count 7)--if successful- require a permit determination regarding Mr. Drake's activities and each of those claims... occurred within six years of the initial filing of the Complaint in this action." (emphasis ...


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