United States District Court, D. South Dakota, Central Division
SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION, 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.
OPINION AND ORDER REGARDING REMAINING ISSUES
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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 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
October 2008, Drake again applied for a permit with the
Corps, seeking permission to construct two culverted road
crossings across two gullies 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.
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.
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).
Standard of Review
challenge the Corps' action under the NHPA 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).
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.
Law Concerning Statutory Claims
Clean Water Act
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).
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).
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
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).
National Historic Preservation Act
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. This includes any program or project
where "Federal assistance is provided or any Federal
license, permit, or other approval is
required." 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.
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.
determining that a Corps project is a federal undertaking,
the process of minimizing harm to historical properties,
known as the Section 106 process,  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. § 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 ...