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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 29, 2016

SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION, 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.

          OPINION AND ORDER REGARDING REMAINING ISSUES

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         Plaintiffs Sisseton-Wahpeton Oyate of the Lake Traverse Reservation (the Tribe) and Robert Shepherd, the Tribe's then-Chairman, filed a Complaint and Amended Complaint seeking declaratory, injunctive, and other relief. Doc. 1; Doc. 16. Plaintiffs named as Defendants the United States Corps of Engineers (Corps), Steven E. 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 exemptions and permits under the Clean Water Act (CWA) 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.

         I. Facts

         This lawsuit centers on the Tribe's concern about development at Enemy Swim Lake within the Lake Traverse Reservation in South Dakota. Doc. 16 at ¶ 1. The Tribe considers Enemy Swim Lake (Toka Nuwan Yapi) to be of tremendous cultural and religious significance. Doc. 16 at ¶ 2. There are burial grounds at and near the lake, plants from the lake are used in ceremonies and for medicinal purposes, some tribal members spear and catch fish for sustenance from the lake, and many tribal members consider Enemy Swim Lake to be a sacred place. Doc. 16 at ¶ 2. The land surrounding the lake is owned by the Tribe, tribal members, and non-tribal members. Doc. 16 at ¶ 2.

         Drake, who is not a member of the Tribe, owns land adjoining Enemy Swim Lake. Doc. 16 at ¶ 7. Drake acquired the land from Leo K. Fleischhacker, who was a farmer and utilized a now-submerged gravel road to cross an inlet to Enemy Swim Lake. Doc. 16 at ¶¶ 25-26. Drake has himself been constructing for the last several years the farm roads and bridge, which are approximately one mile in length and travel through an inlet to and crossing near the shoreline of Enemy Swim Lake. Doc. 16 at ¶¶ 14-15. Certain of Drake's prior receipt of exemptions and permits for activities on this property challenged in this litigation were time barred or otherwise dismissed. See Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Eng'rs, 124 F.Supp.3d 958 (D.S.D. 2015); Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Eng'rs, No. CIV-11-3026-RAL, 2014 WL 4678052 (D.S.D. Sept. 18, 2014); Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Eng'rs, 918 F.Supp.2d 962 (D.S.D. 2013). The remaining issues in this case involve certain exemptions and permits under the CWA received in 2006 and 2009 by Drake from the Corps relating to excavation and extraction activities to create farm roads and a bridge to improve access to a portion of Drake's land. Doc. 16 at ¶ 11; Doc. 69 at 17; Doc. 90.

         On January 25, 2005, because of the Tribe's and other neighbors' misgivings about Drake's intended property use, the office of United States Senator Tim Johnson coordinated a meeting concerning Drake's development projects at the Day County Courthouse in Webster, South Dakota. Doc. 18-46 at ¶ 5; Doc. 27-6 at 4. This meeting was attended by, among others, Drake, Alvah Quinn, a member of the Tribe and its Fish and Wildlife Director, Doc. 18-46 at ¶¶ 1-3, Floyd DeCoteau, a member of the Tribe and a lease clerk for Tribal Realty, Doc. 18-47 at ¶¶ 2-3, David LaGrone, a civil engineer for the Corps, Doc. 27-6, and Drew C. Johnson, a private attorney representing various individual landowners, Doc. 27-6 at 25-27. The focus of the meeting was on Drake's activities at Enemy Swim Lake and the Corps' action to that point in allowing or not intervening in those activities.

         In September 2005, Drake completed an "Application for Department of the Army Permit" to construct a bridge across the primary inlet tributary of Enemy Swim Lake for access to agricultural land northwest of the inlet. RA 1456; Doc. 32 at 4-5. On May 1, 2006, the Corps informed Drake that the bridge[1] would be exempt from the individual permitting requirements of the CWA because it qualified as a farm road. Doc. 16 at ¶ 33; Doc 18-9 at 2. This 2006 bridge project was incomplete at the time of the filing of the present lawsuit and although Drake had recently placed decking on the bridge, it had yet to be used at that time. Doc. 16 at ¶¶ 34-36. The bridge is made of steel I-beams and is wide enough for a two-lane road. Doc. 16 at ¶¶ 37-38.

         In October 2008, Drake again applied for a permit with the Corps, seeking permission to construct two culverted road crossings across two gullies[2] west of the 2006 bridge project. RA 2987. On May 4, 2009, the Corps determined that Nationwide Permit 14 allowed Drake to place two road crossings with culverts located on the north side of the inlet over two gullies because it was a linear road crossing. Doc. 18-9.

         In 2009, the Tribe made a Freedom of Information Act request regarding the Corps' dealings with Drake and received responsive documents. In 2009 and 2010, the Tribe and the Corps exchanged several letters. On June 15, 2009, the Tribe asked the Corps to withdraw the exemption decisions and permits granted to Drake. Doc. 18-2 at 1. On July 7, 2009, the Corps provided an interim response to the Tribe. Doc. 18-5. The Tribe sent an additional letter on May 2, 2010. Doc. 18-8. The Corps then responded with a letter on August 30, 2010, which opened by thanking the Tribe "for this further opportunity to explain the decisions we have made and the actions we have taken over the course of our twelve-year involvement in this matter." Doc. 18-9 at 1.

         In February of 2012, the Tribe filed an Amended Complaint against the Corps seeking declaratory and injunctive relief on several claims under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. Doc. 16. This Court granted in part the Corps' motion to dismiss in an Opinion and Order that dismissed "any and all Counts and claims challenging Corps' exemptions and Nationwide Permit determinations that were discussed during the January 25, 2005 meeting" because they were time barred. Doc. 32 at 22; Sisseton-Wahpeton Oyate, 918 F.Supp.2d at 974-75. Following two evidentiary hearings, this Court concluded that determinations made by the Corps as to various projects of Drake's 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; Sisseton-Wahpeton Oyate, 2014 WL 4678052, at *9. 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; Sisseton-Wahpeton Oyate, 918 F.Supp.2d at 975. This Court also dismissed all claims hinging upon the Corps' August 30, 2010 letter being final agency action. Doc. 32 at 22; Sisseton-Wahpeton Oyate, 918 F.Supp.2d at 975. Remaining at issue is whether the Corps violated the requirements and implementing regulations of the National Historic Preservation Act (NHPA) and the CWA when it issued an exemption under the CWA for Drake's 2006 bridge project, and when it determined that Drake's 2009 gully crossings qualified under a Nationwide Permit (NWP).

         II. Standard of Review

         Plaintiffs challenge the Corps' action under the NHPA[3] and the CWA through the APA. Under the APA, the United States waived its sovereign immunity on behalf of federal agencies, such as the Corps. 5 U.S.C. § 702. Agency action reviewed under the APA cannot be set aside by a reviewing court unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This standard is both narrow and highly deferential. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court cannot "substitute its judgment for that of the agency, " id, and "[i]f an agency's determination is supportable on any rational basis, [the Court] must uphold it, " Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004). A court may only find that an agency's decision was arbitrary and capricious if "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." McClung v. Paul, 788 F.3d 822, 828 (8th Cir. 2015) (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43).

         This case involves claims made by Plaintiffs that deal with both the Corps' statutory interpretation and the Corps' interpretation of its own regulations. Where the Corps has interpreted CWA or NHPA, judicial scrutiny of the interpretation is guided by the two-step test found in Chevron. U.S.A.. Inc. v. Nat. Res. Def Council. Inc., 467 U.S. 837 (1984). First, the court looks to "whether Congress has directly spoken to the precise question at issue." Id., at 842. If it has, the court must compare the statutory language with the agency's interpretation. Id. at 842-43. If it has not, the court must determine whether "the agency's answer is based on a permissible construction of the statute, " even if the agency's construction was not "the only one it permissibly could have adopted." Id. at 843 & n.11. Where the Corps has interpreted its own regulations, the Corps' interpretation cannot be disturbed, unless it is "plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). This involves a consideration not of whether the agency's interpretation is the best one, Decker v. Nw. Envtl. Def. Ctr., 133 S.Ct. 1326, 1337 (2013), but whether the interpretation is a "fair and considered judgment on the matter in question, " Auer, 519 U.S. at 462.

         III. Law Concerning Statutory Claims

         A. The Clean Water Act

         The CWA was passed in an effort to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). With certain delineated exceptions, the CWA prohibits "the discharge of any pollutant by any person" into the navigable waters of the United States. Id. § 1311(a). The Corps is authorized to issue individual permits that allow "the discharge of dredged or fill material into the navigable waters at specified disposal sites." Id. § 1344(a). In addition to individual permits, the Corps is authorized to develop and issue general permits lasting five years that cover activities that "will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." Id. § 1344(e). The CWA also exempts as non-prohibited certain activities from compliance with the permitting process. Id. § 1344(f).

         The NWP program developed from the allowance for general permits within the CWA. See id § 1344(e). NWPs are designed to "regulate with little, if any, delay or paperwork certain activities having minimal impacts." 33 C.F.R. § 330.1(b). The process for creating a NWP involves a public notice and hearing procedure, . and includes an analysis of the effects of the NWP under the CWA's and the National Environmental Protection Act's (NEPA) requirements. ' See 33 U.S.C. § 1344(e)(1)-(2) (authorizing the Corps' issuance of general permits subject to prior review conditions); 33 C.F.R. § 330.5 (b)(3) (noting requirements under NEPA and CWA for NWPs); 42 U.S.C. § 4332(C) (detailing NEPA requirements); 40 C.F.R. Pt. 230 (detailing requirements for all permits under CWA to follow). Only after this multi-layered approval process are the NWPs published in the Federal Register and valid for a period of five years. 33 U.S.C. § 1344(e)(2); see generally 33 C.F.R. Pt. 330 (governing the issuance and administration of the NWP program). Individuals whose actions comply with the requirements of a specific NWP can proceed under the NWP without an individual permit, and in most cases without notifying the Corps, to dispose dredged or fill material into regulated waters, provided they comply with any conditions attached to the NWP. 33 C.F.R. § 330.2(c). These General Conditions are published alongside the NWPs and "are additional provisions which place restrictions or limitations on all of the NWPs." Id. § 330.2(h).

         "No activity which may affect properties listed or properties eligible for listing in the National Register of Historic Places[] is authorized" until the Corps complies with Appendix C, the Corps' guidance for complying with NHPA. 33 C.F.R.- § 330.4(g); Reissuance of Nationwide Permits, 72 Fed. Reg. 11, 092, 11, 192-93 (Mar. 12, 2007) (outlining General Condition 18, which is based on 33 C.F.R. § 330.4(g)). The Corps requires that "[n]on-federal permittees will notify the [District Engineer] if the activity may affect historic properties which the National Park Service has listed, determined eligible for listing, or which the prospective permittee has reason to believe may be eligible for listing, on the National Register of Historic Places." Id. at § 330.4(g)(2). The proposed activity may not then begin "until ... the requirements of the National Historic Preservation Act have been satisfied." Id. at § 330.4(g)(2).

         The NWP at issue here is NWP 14 as it was in effect in 2007. Reissuance of Nationwide Permits, 72 Fed. Reg. at 11, 183-84. This NWP allows "[activities required for the construction, expansion, modification, or improvement of linear transportation projects (e.g., roads . . .) in waters of the United States." Id. at 11, 183. The NWP requires "pre-construction notification" to the Corps "if: (1) The loss of waters of the United States exceeds 1/10 acre; or (2) there is a discharge in a special aquatic site, including wetlands." Id. at 11, 184. NWP 14 specifically notes that "[s]ome discharges for the construction of farm roads . . . may qualify for an exemption under Section 404(f) of the Clean Water Act." Id. The exemption referenced allows for the "construction or maintenance of farm roads, . . . where such roads are constructed and maintained, in accordance with best management practices." 33 U.S.C. § 1344(f)(1)(E). As an exception to the exemption, if the exempted road would bring "an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, " that road would be subject to regulation, or "recaptured, " under the CWA. Id. § 1344(f)(2).

         B. The National Historic Preservation Act

         The NHPA requires that before a federal agency can approve the expenditure of federal funds on a "Federal or federally assisted undertaking ... or prior to the issuance of any license, " the agency head shall "take into account the effect of the undertaking" on historic properties. 54 U.S.C. § 306108.[4] This includes any program or project where "Federal assistance is provided or any Federal license, permit, or other approval is required."[5] Id. at § 306105. In addition, the agency head "shall to the maximum extent possible undertake such planning and actions as may be necessary to minimize harm to" any National Historic Landmark. Id. at § 306107. The agency must allow the Advisory Council on Historic Preservation (Advisory Council), created under the NHPA, to comment on the undertaking's effect on a historic property. Id. at § 306108.

         In its guidelines, the Corps defines an undertaking as "the work, structure or discharge that requires a Department of the Army permit pursuant to the Corps regulations." 33 C.F.R. Pt. 325, App'x C at (1)(f). In the regulations implementing the NHPA, the Advisory Council defines an undertaking as "a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval, " which is verbatim from the NHPA's definitions section. 36 C.F.R. § 800.16(y); Protection of Historic Properties, 65 Fed. Reg. 77, 698, 77, 712 (Dec. 12, 2000); see also 54 U.S.C. § 300320. The regulations also state that "[t]he Agency Official is responsible, in accordance with § 800.3(a), for making the determination as to whether a proposed Federal action is an undertaking, " but should seek advice from the Advisory Council "when uncertain about whether or not its action falls within the definition of an undertaking." Protection of Historic Properties, 65 Fed. Reg. at 77, 712. The Corps and the Advisory Council disagree about whether the Corps' regulations comply with the NHPA in several areas. See Doc. 90-2.

         After determining that a Corps project is a federal undertaking, the process of minimizing harm to historical properties, known as the Section 106 process, [6] begins. The first step is to determine whether the undertaking "is a type of activity that has the potential to cause effects on historic properties." 36 C.F.R. § 800.3(a). "If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part." Id. ยง 800.3(a)(1). The Advisory Council has clarified that at this step agencies "should not be considering case-specific issues, " but should instead focus on the "'type and nature' of the undertaking." Protection of Historic Properties, 65 Fed. Reg. at 77, 703. No further codified guidance is ...


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