United States District Court, D. South Dakota, Central Division
SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION; and ROBERT SHEPHERD, CHAIRMAN, Plaintiffs,
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
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.
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,
OPINION AND ORDER ON PENDING MOTIONS
A. LANGE, UNITED STATES DISTRICT JUGDE.
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.
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.
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,
which Defendants have allegedly improperly permitted to occur
under the guise of agricultural projects.
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 (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.
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.
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
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.
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
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.
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.
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)).
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.
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
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
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 ...