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

Filing 32

OPINION AND ORDER granting in part and denying in part 26 Motion to Dismiss. Signed by U. S. District Judge Roberto A. Lange on 1/18/13. (DJP)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
SIS SETON-WAHPETON OYATE OF
THE LAKE TRAVERSE
RESERVATION
and ROBERT SHEPHERD, Chairman,
Plaintiffs,
vs.
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.

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JAN 18 2013

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CIV 11-3026 -RAL

OPINION AND ORDER

GRANTING IN PART AND

DENYING IN PART MOTION

FOR PARTIAL DISMISSAL

Sisseton-Wahpeton Oyate of the Lake Traverse Reservation (lithe Tribe") and Robert
Shepherd, the Tribe's chairman, filed a Complaint for declaratory, injunctive, and other relief.
Doc. 1. Plaintiffs named as Defendants United States Corps ofEngineers (lithe Corps"), Robert
J. Ruch ("Ruch"), in his official capacity as district commander, and Steven E. Naylor
("Naylor"), in his official capacity as regulatory program manager.
Defendants filed a Partial Answer, Doc. 10, and Motion to Dismiss for Lack of
Jurisdiction, Doc. 11. Plaintiffs filed an Amended Complaint, Doc. 16, a Memorandum in
Opposition to Defendants' Motion to Dismiss, Doc. 18, and a Supplement, Doc. 21; Doc. 22.
Defendants then filed a Motion to Dismiss (Partial) Plaintiffs Amended Complaint and withdrew
the original Motion to Dismiss, Doc. 26. Plaintiffs resisted that motion through a Response,
Doc. 29, and Defendants also filed a Reply to that Response, Doc. 30. Plaintiffs and Defendants

submitted several affidavits and declarations providing information outside of the Complaint.
Doc. 18; Doc. 19; Doc. 21; Doc. 22; Doc. 27; Doc. 29; Doc. 30.

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 to be oftremendous cultural and religious significance. Doc. 16 at ~ 2. The
1867 Treaty between the United States and the Tribe dealt in part with Enemy Swim Lake. Doc.
16 at

~

2. There are burial grounds at and 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 be a sacred place. Doc. 16 at ~ 2.
Merlyn Drake ("Drake"), who is not a member ofthe Tribe, owns land adjoining Enemy
Swim Lake. Doc. 16 at ~ 7. Drake acquired the land from Leo K. Fleischacker, who was a
farmer and utilized a now-submerged gravel road to cross an inlet to Enemy Swim Lake. Doc.
16 at W25-26. Drake has received certain exemptions and permits from the Corps for a farm
road and bridge to access a pasture, but according to the Plaintiffs is not a farmer. Doc 29 at 7
n.35. Drake's exemptions and permits from the Corps include authorization for excavation and
extraction activities for the production of a road and bridge. Doc. 16 at ~ 11. Drake worked for
several years on a road, approximately one mile in length, through an inlet to and crossing near
the shoreline ofEnemy Swim Lake. Doc. 16 at ~ 14. The Plaintiffs have not sued Drake directly
because of a concern that Drake would have a successful "permit shield" defense because his
"compliance with an authorized permit is deemed compliance with the CWA [Clean Water
Act]." Doc. 18 at 5 n.23.

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The first exemption determination at issue came on August 18, 1998, when the Corps
sent a letter to Drake advising that Drake's proposal to construct "a road across a drainage into
Enemy Swim Lake consisting of installing a 70-foot span bridge with approach berms and
a~utments

for access by livestock and equipment" was exempt from the requirement to have a

§ 404 permit under the Clean Water Act. Doc. 27-1. The Plaintiffs allege that Drake never
completed the project at issue in the August 18, 1998 letter. Doc. 29 at 9. On June 6, 2000, the
Corps issued a letter to Drake determining Drake was entitled to authorized site grading and
construction of an access road with associated 0.30 acre wetland fill for residential lot
development, and construction of a culverted agricultural road crossing at a second location
along Enemy Swim Lake. Doc. 18-9 at 4; Doc. 27-2.
In 2003, Drake filed an Application to raise the access road surface above the water

surface in order to access his property on the north side without trespassing through the Tribe's
land. Doc. 16 at ~~ 19-20. Drake previously had declined the Tribe's offer of an easement for
Drake to access his north side lakeshore property. Doc. 16 at ~ 22. On December 2,2003, the
Corps informed Drake that his proposed project-"a culverted farm road approximately four feet
high with a twenty feet wide top and 2:1 sideslopes across a wetland adjacent to Enemy Swim
Law to provide access for livestock and equipment"-was exempt from § 404 ofthe Clean Water
Act as a farm road under 33 U.S.C. § 1344(f) and 33 C.F.R. § 323.4. Doc. 27-3; Doc. 16 at~ 23.
The Corps' decision was conditioned upon, among other things: (1) the design of the road not
changing; (2) a change in the project; (3) complying with the Road Exemption Conditions or
Best Management Practice; (4) complying with the Corps regulations; and (5) complying with
the Clean Water Act. Doc. 16 at~ 23; Doc. 27-3 at 3-4. In 2009, Drake informed the Corps and

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Tribal officials that the road has not been completed. Doc. 16 at ~ 29. Drake is still working on
the road. Doc. 16 at ~ 30. Despite a prior suggestion that he would do so, Drake has not fenced
off either Enemy Swim Lake from his property or his new road to ensure that the cattle use the
new road when crossing the inlet of Enemy Swim Lake. Doc. 16 at m/20, 31. On December 4,
2003, the Corps determined that a Nationwide Permit allowed a north-south road crossing
connecting Drake's driveway to another residence, understood by the Corps to be "a culverted
road across a wetland approximately 375 feet long with an eighteen feet wide top to provide
public access to local residences." Doc. 18-9 at 4; Doc. 27-4. The Corps provided no public
notice or separate notice to the Tribe ofthe 1998 or 2003 regulatory decisions concerning Drake's
requests.
On January 25, 2005, because of the Tribe's and others' 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 m/1-3,
Floyd DeCoteau, a member ofthe Tribe and a lease clerk for Tribal Realty, Doc. 18-47 at m/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. The parties have varying
characterizations of the meeting although the meeting's focus was on Drake's activities at and
near Enemy Swim Lake.
In 2006, the Corps determined that Drake's proposed bridge across the primary inlet

tributary ofEnemy Swim Lake for access to agricultural land northwest ofthe inlet was similarly

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exempt from § 404 ofthe Clean Water Act as a farm road. Doc. 16 at ~ 33; Doc 18-9 at 2. That
bridge 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. Doc. 16 at W34-36. The bridge is
made ofsteel I-beams and is wide enough for a two-lane road. Doc. 16 at~~ 37-38. Finally, on
May 4,2009, the Corps determined that a Nationwide Permit allowed Drake to place two road
crossings with culverts located on the north side of the inlet. 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 August 30, 2010, which opened by
thanking the Tribe IIfor this further opportunity to explain the decisions we [the Corps] have
made and the actions we have taken over the course of our twelve-year involvement in the
matter." Doc. 18-9.

II. Standard of Review
Defendants move to dismiss some of Plaintiffs' claims under Federal Rule of Civil
Procedure 12(b)(1) for a lack of subject matter jurisdiction.

See, e.g., Runs After v. United

States, 2012 WL 2951556, No. 10-3019-RAL, at *3 (D.S.D. July 19, 2012). A court is to
conduct a different review based on whether a motion to dismiss under Federal Rule of Civil
Procedure 12(b)( 1) is a facial or a factual attack.
A court deciding a motion under Rule 12(b)(1) must distinguish between
a "facial attack ll and a "factual attack." In the first instance, the court
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restricts itself to the face of the pleadings and the non-moving party
receives the same protections as it would defending against a motion
brought under Rule 12(b)(6). The general rule is that a complaint should
not be dismissed unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief. In a factual attack, the court considers matters outside the
pleadings and the non-moving party does not have the benefit of 12(b)(6)
safeguards.
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (internal citations and quotation
marks omitted).
All parties to this lawsuit agree that as to the question of the statute of limitations, the
Defendants' motion to dismiss is factual in nature. Doc. 29 at 7. Therefore, this Court may
"consider[] matters outside the pleadings," and the Plaintiffs do not benefit from the standard
Rule 12(b)(6) safeguards. Osborn, 918 F.2d at 729 n.6.
Here the trial court may proceed as it never could under 12(b)(6)
or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1 ) motion
is the trial court's jurisdiction-its very power to hear the case-there
is substantial authority that the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power to hear
the case. In short, no presumptive truthfulness attaches to the
plaintiff's allegations, and the existence ofdisputed material facts
will not preclude the trial court from evaluating for itself the
merits ofjurisdictional claims. Moreover, the plaintiff will have
the burden of proof that jurisdiction does in fact exist.
Osborn, 918 F.2d at 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3rd Cir. 1977)).
Rule 12 requires this Court to apply the Rule 56 standards for motions for summary
judgment to such a factual challenge. Fed. R. Civ. P. 12(b), (c); Osborn, 918 F.2d at 729. Under
Rule 56, courts view "the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party." E.E.O.C. v. CRST Van Expedited,

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Inc., 679 F.3d 657,686 (8th Cir. 2012) (quoting Mayer v. Countrywide Home Loans, 647 F.3d
789, 791 (8th Cir. 20 II)). A party opposing a properly made and supported motion under Rule
56 must cite to particular materials in the record supporting the assertion that a material fact is
genuinely disputed. Fed. R. Civ. P. 56(c)(I); Gacek v. Owens & Minor Distrib .. Inc., 666 F.3d
1142, 1145 (8th Cir. 2012). "Jurisdictional issues, whether they involve questions of law or of
fact, are for the court to decide." Osborn, 918 F.2d at 729.
The Corps also asks for dismissal to the extent that the Plaintiffs challenge the Corps'
exercise of enforcement discretion. This is a facial attack under 12(b)(1) and thus "the court
restricts itselfto the face ofthe pleadings and the non-moving party receives the same protections
as it would defending against a motion brought under Rule 12(b)(6)." Osborn, 918 F .2d at 729
n.6 (internal citation omitted). This Court may grant a motion to dismiss under Rule 12(b)(6)
when "the plaintiff can prove no set offacts that would entitle him to relief." Botten v. Shorma,
440 F.3d 979,980 (8th Cir. 2006); Muller v. Gateway Bldg. Sys .. Inc., 743 F. Supp. 2d 1096,
1098 (D.S.D. 2010).

III. Discussion
Defendants' motion for partial dismissal seeks to dismiss Counts 1,2,3,4,5, and 6 as
well as Plaintiffs' challenges to regulatory actions occurring more than six years prior to the filing
of the Complaint or Amended Complaint and the Corps' August 30, 2010 letter. Doc. 26 at 3.
Defendants make three arguments for partial dismissal of the Amended Complaint: (1) the
Plaintiffs' challenge ofthe Corps' regulatory action is beyond the six-year statute oflimitations;
(2) the August 30, 2010 letter is not, as the Plaintiffs contend, the final agency action for

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purposes ofjudicial review; and (3) a challenge to the Corps' exercise of enforcement discretion
is non-justiciable. Doc. 27 at 3-4.

A. Statute of Limitations
Defendants argue that Counts 1,2,3,4, 5, and 6 violate the statute oflimitations and are
therefore subject to dismissal under Federal Rule of Civil Procedure 12(b)(1). On a motion to
dismiss for lack of jurisdiction, it is appropriate to consider matters outside the pleadings to
determine the relevant jurisdictional facts. See Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir.
1998). Because the statute of limitations is a jurisdictional limit, "the plaintiff will have the
burden ofproof that jurisdiction does in fact exist." Osborn, 918 F.2d at 730; Runs After, 2012
WL 2951556 at *6 ("When, as in the present case, a defendant challenges subject matter
jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdictional
facts.") (citing V S Ltd. P'ship v. Dep't Hous. and Urban Dev., 235 F.3d 1109, 1112 (8th Cir.
2000)).
Suits against the United States "shall be barred unless the complaint is filed within six
years after the right of action first accrues." 28 U.S.c. § 2401 (a). The United States has waived
sovereign immunity on behalf ofagencies. See 5 U.S.C. § 702. "A person suffering legal wrong
because ofagency action; or adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 701. This waiver of
sovereign immunity is not absolute; the waiver applies unless "(1) statutes preclude judicial
review, or (2) agency action is committed to agency discretion by law. II 5 U.S.C. § 702. Section
702 "allows the judiciary, assuming all other jurisdictional requirements are met, to halt illegal
government conduct." Erwin Chemerinsky, Federal Jurisdiction 634 (5th ed. 2007) (emphasis

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added).

The waiver of sovereign immunity under § 702 therefore is subject to the six-year

statute of limitations. Izaak Walton League of America, Inc. v. Kimbell, 558 F.3d 751, 758-59
(8th Cir. 2009).
The waiver of sovereign immunity exists for six years after "the right of action first
accrues." 28 U.S.C. § 2401 (a). 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 751, 759 (quoting and citing Chandler
v. United States. Air Force, 255 F.3d 919, 921 (8th Cir. 2001)); see also Victor Foods, Inc. v.
Crossroads Econ. Dev. ofSt. Charles County, Inc., 977 F.2d 1224, 1226 (8th Cir. 1992) (per
curiam) ("A cause ofaction accrues when there are facts enabling one party to maintain an action
against another. "). "For purposes of § 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. United States Dep't of Hous. and Urban Dev., 678 F.3d 626,629 (8th Cir. 2012)
(quoting Izaak Walton, 558 F.3d at 759); Loudner v. United States, 108 F.3d 896,900 (8th Cir.
1997).
The Plaintiffs assert that their claims about the Corps' actions regarding Drake's activities
did not accrue for purposes of the statute of limitations until the Corps' August 20,2010 letter.
The Corps contends that the claims accrued at least by January 25, 2005, with respect to the
Corps' exemption determinations of August 18, 1998, and December 2, 2003, and the Corps'
Nationwide Permit verifications on June 6, 2000 and December 4,2003.
The Corps made its first exemption determination on August 18, 1998, when it sent a
letter to Drake stating that Drake's proposal to construct a road was exempt from the requirement

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to have a Clean Water Act § 404 pennit. Doc. 27-8. The letter was not preliminary in nature,
but stated the Corps' regulatory decision. However, the letter to Drake was not published and
there is no evidence of any public notice at the time of the August 18, 1998 exemption or that
the Plaintiffs knew or should have known of this letter at the time. Thus, the statute of
limitations on the Plaintiffs' claim did not begin to run on August 18, 1998. The same is true for
the June 6, 2000 verification letter stating that certain site grading and a culverted agricultural
road were exempt from the permit requirements.
The Corps sent two letters to Drake in December of 2003--a December 2, 2003 letter
determining a fann road project exempt from requiring a permit, Doc. 27-3, and a December 4,
2003 letter detennining that a Nationwide Pennit allowing construction of a culverted road for
public access to local residences. Doc. 27-4. Again, although both letters were decisions not
preliminary in nature, neither the December 2, 2003 letter nor the December 4, 2003 letter was
a matter of public knowledge, and there is no evidence that the Plaintiffs knew or should have
known of the agency action at the time the Corps detennined the exemption and Nationwide
Permit to apply in December of 2003.
However, the record reveals that the Plaintiffs knew something about the Corps' dealings
with Drake more than six years prior to the filing of the suit. Alvah Quinn is a tribal member
and works for the Tribe. Doc 18-46 at W2-4. On November 8,2004, Quinn called the Corps
on behalf of the Tribe. Quinn spoke with M. James Oerhlerking, a civil engineer employed by
the Corps and stationed in Pierre, South Dakota, on November 9,2004. Doc. 27-7. Oerhlerking
took notes during and about the November 9,2004 telephone conversation with Quinn. See Doc.
27-7 at 5. These notes indicate that Oerhlerking infonned Quinn about the § 404 exemption

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issued to Drake on December 2,2003, and that Quinn was calling on behalf of the Tribe due to
its concern and objections to the bridge crossing. Doc. 27-7 at 5; Doc. 30-1 at ~ 5. Oerhlerking
does not remember a discussion about any other exemptions or permits at that time. Doc. 30-1
at ~ 5. Quinn disagrees with Oerhlerking's notes, does not recall discussing any exemptions or
permits at issue in this case, recalls discussing different Nationwide Permits concerning Drake's
driveway, and believes that the only bridge discussed was a different one at the mouth ofa creek
or the east side of Enemy Swim Lake. Doc. 29-1 at ~~ 9-10. Oerhlerking's notes reflects that
Quinn believed that Drake was intending to use improved access to his property to develop lots
along the lake. Doc. 27-7 at 5. This conversation reflects some awareness by the Tribe ofsome
Corps' conduct regarding Drake's actions. See Loudner, 108 F.3d at 900.
After the phone discussion with Oerhlerking, Quinn and others attended the January 25,
2005 meeting organized by Senator Tim Johnson's office to address issues with Drake's projects.
The Corps points to this meeting as providing Plaintiffs notice because "representatives of the
Tribe attended a public meeting coordinated by Senator Tim Johnson's office that focused partly
on the regulatory authorizations the Corps had then issued to Drake." Doc. 17 at 19. The
individuals attending this meeting included tribal representatives Alvah Quinn and Floyd
DeCoteau, the Corps' David LaGrone, and attorney Drew C. Johnson on behalf of other
landowners concerned with Drake's conduct.
There are written documents that help reconstruct what was discussed at the January 25,
2005 meeting. In a January 28,2005 letter to the Corps, Drew C. Johnson, a private attorney
who attended the meeting on behalf of certain landowners, described the meeting's purpose as
"to take public comments about concerns raised by various land owners ... dealing with a

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number of issues but primarily two that were dealt with at length: (1) Lake Access and (2)
Drake's permits to build various roadways through wetlands." Doc. 27-6 at 24. However, in an
affidavit filed in this case, attorney Johnson stated that the January of2005 meeting left him with
the understanding that the Corps' decision making at that point "was preliminary in nature and
that they were in the process ofreviewing Mr. Drake's activities, as well as complaints received
from the public." Doc. 29-2 at ~ 11. In an April 16,2005 letter to Senator Johnson reporting on
the meeting, the Corps described that the "primary concerns discussed at the meeting were the
purpose and need of the roads through the wetlands and the Corps permits associated with the
roads. Four separate permit applications were submitted to the Corps for roads in the area from
1998 to 2003." Doc. 27-6 at 5. The Watertown Public Opinion ran a story about the meeting
on January 26,2005. Doc. 12 at 35-37. The article reports that both the Corps and the Tribe
were present at the meeting, and the "the primary dispute" at the meeting "centered on permits
issued by [the Corps] for Merlin Drake to build road access to his property." Doc. 12 at 35.
Specifically, the "dispute centered around permits for two drives through the area wetlands and
a third proposed private roadway that is exempt from the [C]orps' permitting process." Doc. 12
at 35.
Quinn and DeCoteau, the two representatives of the Tribe attending the meeting, recall
discussion that "Mr. Drake was seeking a crossing for his cattle" and discussions centered on
Drake's use of a preexisting road and not "a road or farm road through Enemy Swim Lake"
during the meeting ofJanuary25, 2005. Doc. 18-47 atW 6,10, 13. However, Quinn, in earlier
conversation with Oerhlerking, had "questioned Mr. Drake's intentions and that [he] already

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view[ed] Drake as adeveloper."t Doc. 29-1 at, 13. The January 25, 2005 meeting involved the
concerns ofthe Tribe and others about Drake's interactions with the Corps and his intentions to
develop his land at Enemy Swim Lake.
Accrual for the purpose of § 240l{a) occurs when a plaintiff either "knew, or in the
exercise ofreasonable diligence should have known, that they had a claim." Loudner, 108 F 3d
at 900; see also Izaak Walton, 558 F.3d at 759 (8th Cir. 2009). 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
oflimitations 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 ofwitnesses. The Plaintiffs filed their Complaint on November 7, 2011,
Doc. 1, after the running ofthe six year statute oflimitations for those permits and exemptions
discussed on January 25, 2005, as having been granted, authorized, or determined.
The Plaintiffs also claim that the Corps' regulation (or lack of regulation) of Drake is a
continuing violation, and thus that all of their claims are preserved from being time barred. As
the Eighth Circuit has stated:
Under the so-called continuing-violation theory, each overt act that is part
of the violation and that injures the plaintiff starts the statutory period
running again, regardless of the plaintiffs knowledge of the alleged
illegality at much earlier times. [A]cts that are merely unabated inertial
consequences (of a single act) do not restart the statute of limitations.

IIndeed, the Plaintiffs acknowledge that "[a]s early as 1998 Drake publicly represented that
he w[ould] develop his land on the north side of the lake inlet/wetland." Doc. 16 at, 65.
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Thus, to apply the continuing violation theory, new overt acts must be
more than the unabated inertial consequences of the initial violation.
Izaak Walton, 558 F.3d at 759 (internal citations and quotation marks omitted). The Plaintiffs
are correct that there were multiple acts by Drake regarding site grading, roads, and bridges on
Drake's property, but each act of the Corps was not "part of the violation," within the meaning
of the continuing violation theory. Id. at 759. Each of Drake's applications was dealt with
separately by the Corps, and each exemption or permit was complete at the time of issuance.
Under the continuing violation theory, it is the conduct ofthe Corps-not the conduct of a nonlitigant-that determines if there are overt acts part of the violation creating ongoing injury to
the Plaintiffs.
The Corps has taken actions within the six year statute of limitations from the filing of
the Complaint, namely the May 1,2006 exemption for a proposed bridge across the primary inlet
tributary for access to agricultural land northwest ofthe inlet and the May 4,2009 permit for the
purpose of placing two road crossings with culverts. Doc. 18-9 at 1-2, 4. Those two events are
not time barred under the statute of limitations, but do not establish a "continuing violation."

B. August 30, 2010 Letter
Defendants seek dismissal ofthe Plaintiffs' claims characterizing the Corps' August 30,
2010 letter as a final agency action from which the limitations period would run. Doc. 27 at 2.

In its Amended Complaint, the Plaintiffs characterize the Corps' § 404 exemption determinations
ofAugust 18, 1998 and December 2,2003, and the Corps' Nationwide Permits determination of
June 6,2000 and December 4,2003, as "preliminary decisions" and allege that there was no final
decision on any of those matters until the August 30, 2010 letter. Doc. 16 at 3 2 ~ 1.

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Under the Administrative Procedure Act (" APA"), "[a] preliminary, procedural, or
intermediate agency action or ruling not directly reviewable is subject to review on the review
ofthe final agency action." 5 U.S.C. § 704. "[A] cause of action seeking judicial review under
the APA accrues at the time offinal agency action." Preminger v. Sec'y 0 fVeterans Affairs, 517
F.3d 1299, 1307 (Fed. Cir. 2008); see also Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir.
1997) ("Under the APA, a right of action accrues at the time of 'final agency action."'). The
Supreme Court of the United States has stated:
To determine when an agency action is final, we have looked to,
among other things, whether its impact "is sufficiently direct and
immediate" and has a "direct effect on ... day-to-day business."
An agency action is not final if it is only "the ruling of a
subordinate official," or "tentative." The core question is whether
the agency has completed its decisionmaking process, and
whether the result of that process is one that will directly affect
the parties.
Franklin v. Massachusetts, 505 U.S. 788, 796-97 (1992) (internal citations omitted); see also
Iowa Utils. Bd. v. F.C.C., 120 F.3d 753,803 (8th Cir. 1997), and Nebraska ex reo Nelson v. Cent.
Interstate Low-Level Radioactive Waste Comm'n, 26 F.3d 77,80 (8th Cir. 1994). An agency
action is final "whether or not there has been presented or determined an application for a
declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by
rule and provides that the action meanwhile is inoperative, for an appeal to superior agency
authority." 5 U.S.c. § 704.
On June 15, 2009, the Tribe first asked the Corps to withdraw the § 404 exemption
decisions and the Nationwide Permit determinations regarding Drake's projects. Doc. 18-2 at
1. On July 7,2009, the Corps provided an interim response to the Tribe. Doc. 18-5. This letter
communicated that exemptions and permits already had been issued to Drake, but that the Corps
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would continue to monitor Drake's activities and planned a site visit within a month to review
the current site conditions and determine ifany violations or noncompliance conditions existed.
Doc. 18-5 at 1. The Tribe sent an additional letter on May 2,2010. Doc. 18-8. The Corps then
responded with the August 30, 2010 letter at issue. Doc. 18-9. The August 30, 2010 letter began
by thanking the Tribe "for this further opportunity to explain the decision we [the Corps] have
made and the actions we have taken over the course of our twelve-year involvement in the
matter." Doc. 18-9. The letter made clear that the prior Corps determinations were firm and
"that any modifications to the road to serve a non-exempt purpose, such as a residence or other
development, will be subject to permit requirements." Doc. 18-9 at 2. The letter also stated that
the Corps had continued, and would continue, "to conduct compliance inspects and [would]
continue to require adherence to those conditions." Doc. 18-9 at 4.
The permits and exemptions predating 2005 granted by the Corps to Drake constituted
final agency action at the time of issuance. "The core question is whether the agency has
completed its decision[ -]making process, and whether the result of that process is one that will
directly affect the parties. " Franklin, 505 U.S. at 796-97. Here, the Corps had completed the
decision-making process on permits and exemptions predating 2005 at the time that it made
those permits and exemptions determinations. See Nat'l Ass'n of Home Builders v. U.S. Army
Corns of Eng'rs, 417 F .3d 1272, 1278-79 (D.C. Cir. 2005) (finding issuing of Nationwide
Permits to constitute final agency action). The Corps gave Drake full permission to move
forward with the projects subject to the permits and exemptions. There was no higher level of
review within the agency and the legal rights of each side were clear at the time of issuance.
Although the Corps would continue to monitor Drake to ensure compliance and would continue

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to issue additional permits and exemptions if there were any changes in Drake's project, each
individual permit and exemption was final at the time of issuance.

This comports with how

other courts have understood actions by the Corps. In Arkansas Nature Alliance, Inc. v. U.S.
Army Corps ofEng'rs, the United States District Court for the Eastern District ofArkansas found

that a Nationwide Permit determination, which allowed the placement of fill materials, was a
final agency action. 266 F. Supp. 2d 876, 881 (E.D. Ark. 2003). Similarly, the Eighth Circuit
explained that when the grant of a permit by the Corps does "conclusively determine the
disputed issue," it is thus a final action. Ripplin Shoals Land Co., LLC v. U.S. Army Corps of
Eng'rs, 440 F.3d 1038, 1045 (8th Cir. 2006).
The Plaintiffs argue that under Friends ofthe Norbeck v. United States Forest Serv., the
Plaintiffs would have been unable to bring suit against the Corps of Engineers before receiving
the August 30, 2010 letter because the Plaintiffs would not have exhausted their administrative
remedies until that letter was issued. 661 F.3d 969,974 (8th Cir. 2011). However, Friends of
Norbeck concerns the general requirement that plaintiffs exhaust administrative remedies and
does not concern whether the Corps actions at issue were final agency actions. Id. The Plaintiffs
had six years following their awareness of the permits and exemptions to satisfy any required
exhaustion ofadministrative remedies under Friends ofthe Norbeck. That case does not suggest
that the Corps' decisions somehow are not final determinations until the Plaintiffs decide to file
an administrative claims.
Finally, the Plaintiffs argue that the statute oflimitations should be equitably tolled and
cite to Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990), to support this argument.
However, Cada and other cases make clear that neither equitable estoppel or equitable tolling

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apply to statutes of limitations that are jurisdictional in nature. Id. at 451; Earl v. Fabian, 556
F.3d 717, 723 (8th Cir. 2009) ("The doctrine of equitable tolling may apply [where] ... there
limitations period ... is not ajurisdictional bar.") (emphasis added) (quoting Gassier v. Bruton,
255 F.3d 492,495 (8th Cir. 2001»; cf., John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 133-34 (2008) (rejecting equitable estoppel in similar statute of limitations of a

j urisdi cti onal nature).

C. Bar Against Reviewing an Agency's Exercise of Enforcement Discretion
Defendants also move to dismiss the Complaint to the extent that the Plaintiffs challenge
any exercise by the Corps of their enforcement discretion because such challenges are non­
justiciable. Doc. 27 at 2-3. The Corps contends that dismissal at least in part of Counts 1,2,3,
4, 5, and 6 is appropriate for this reason. Doc. 27 at 24.
The APA allows judicial intervention, but not when "agency action is committed to
agency discretion by law."

5 U.S.C. § 701 (a)(2).

The Supreme Court addressed the

interpretation of § 701 (a)(2) in Hecklerv. Chaney, 470 U.S. 821 (1985). In Heckler, death row
inmates challenged the refusal ofthe Federal Drug Administration ("FDA ") to further investigate
and regulate drugs to be used by states for lethal injection. Id. at 824-25. The Supreme Court
held that the FDA's decision was not reviewable, interpreting § 701 (a)(2) to mean "review is not
to be had ifthe statute is drawn so that a court would have no meaningful standard against which
to judge the agency's exercise of discretion." Id. at 837-38.
In situations where an agency refuses to take enforcement steps, the presumption is that
judicial review is not available. Heckler, 470 U.S. at 831. "[The Supreme] Court has recognized
on several occasions over many years that an agency's decision not to prosecute or enforce,

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whether through civil or criminal process, is a decision generally committed to an agency's
absolute discretion." Id. The recognition of agency discretion in the area of non-enforcement
is "attributable in no small part to the general unsuitability for judicial review of agency
decisions to refuse enforcement." Id. The Supreme Court provided several rationales for finding
non-enforcement decisions unsuitable for judicial review: a decision not to enforce involves
balancing of factors within the agency's expertise; an agency cannot act against each technical
violation it is charged with enforcing; courts generally will defer to an agency in interpreting and
implementing a statute; a failure to act does not infringe upon an individual's liberty or property
rights; and such a decision is similar to a decision by the Executive Branch to not prosecute,
which has long been held as the special province of only the Executive Branch. Id. at 831-32.
The presumption ofnon-reviewability can be rebutted where the substantive statute has provided
guidelines for the agency to follow in exercising its enforcement laws. Id. at 832-33. There also
may be more room for judicial review if there is a constitutional violation of the rights of
plaintiffs. Id. at 838. Thus, ifCongress required the Corps to review or amend its decisions with
regard to individuals like Drake, this Court could review the decision by the Corps to not do so.
See id. at 833-35. However, as the Eighth Circuit has stated:
[t]he statutory exception to judicial review in the APA is very
narrow and is applicable in those rare instances where statutes are
drawn in such broad terms that in a given case there is no law to
apply. Determining whether an action is committed to agency
discretion requires careful examination ofthe statute on which the
claim of agency illegality is based. The conclusion that agency
action is not susceptible to review is supported by the absence of
any statutory factors to guide the agency's decision-making
process, in combination with the open-ended nature of the
inquiry.
Friends of the Norbeck, 661 F.3d at 975 (internal quotation marks and citations omitted).
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The Plaintiffs make claims under various federal laws. Counts 1 through 6, the counts
that the Corps seeks to dismiss as unreviewable, claim violations of the APA, the Clean Water
Act, and Corps regulations. Doc. 16 at~~ 187,190,201,209,213,218. The Corps argues that
the laws governing the exemptions and Nationwide Pennits detennination on Drake's projects
do not have statutory factors by which to measure the Corps' management decisions. Doc. 17
at 26. The two governing laws are § 404 of the Clean Water Act and the law governing
Nationwide Pennits.
The Eighth Circuit has declared that Ita decision not to modify, suspend or revoke a
Section 404 pennit is one committed to the Corps' absolute discretion and, as such, it is not
reviewable under the Administrative Procedures Act, 5 U.S.C. § 701(a)(1), (2)." Missouri Coal.
for the Env't v. Corps of Eng'rs, 866 F.2d 1025,1032 n.10 (8th Cir. 1989), abrogated on other
grounds, Goos v. I.C.c., 911 F.2d 1283 (8th Cir. 1990). In reaching this decision, the Eighth
Circuit found that "neither the Corps' regulations nor the Clean Water Act mandate issuance of
a permit or the reevaluation of [the] same." Id. The § 404 pennit program provides generally
that a pennit is required for the discharge of dredge or fill material into waters of the United
States. Some otherwise regulated discharges, however, are not subject to the Corps' jurisdiction
under § 404 by virtue of exemptions created by statute and by Corps regulations. It is the
exemptions to § 404 detenninations issued on August 18, 1998, December 2,2003, and May 1,
2006, that are at issue. The Corps did not in fact "modify, suspend or revoke" a § 404 permit
here, but rather initially found an exemption to § 404 that allowed Drake to pursue certain
projects. Without more, this Court cannot detennine that "all agency action in [relation to § 404]
would be acceptable." See Friends ofthe Norbeck, 661 F.3d at 975. In fact, challenges to Corps

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actions have reached as high as the Supreme Court, indicating that not all agency action would
be acceptable. See, e.g., Solid Waste Agency ofN. Cook Cnty. v. U.S. Army COrPs of Eng'rs,
531 U.S. 159 (2001). Thus, the Corps finding an exemption does not fit the "very narrow" rule
disallowing judicial oversight of agency decisions, particularly because the grounds for
exemption were Congressionally created. Friends of the Norbeck, 661 F.3d at 975.
The Corps also maintains that the issuance of Nationwide Permits is a part of agency
discretion and is not subject to judicial review. The Corps, however, is unable to provide any
precedent that treats determinations ofNationwide Permits as exclusive agency domain. There
are instances of court cases involving review of Nationwide Permit determinations. See, e.g.,
Rip,plin Shoals Land Co., 440 F.3d at 1040; Nat'l Ass'nofHome Builders, 417 F.3d at 1278-79;
Shelton v. Marsh, 902 F .2d 1201, 1204 (6th Cir. 1990). Thus, it appears that the granting of
Nationwide Permits similarly does not fit the "very narrow" rule disallowing judicial oversight
of agency decisions. Friends ofthe Norbeck, 661 F.3d at 975.
The Corps thus has failed to show that it has absolute agency discretion over finding §
404 exemptions and granting Nationwide Permits. To the extent that the exemptions and
Nationwide Permit determinations are not time barred, this Court may review those final
determinations.

However, the Corps' decision "not to modify, suspend or revoke" those

determinations subsequently appears to be committed to the Corps' absolute discretion. Missouri
Coal. for the Env't, 866 F.2d at 1032 n.lO.

IV. Conclusion
Accordingly, it is hereby

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ORDERED that Defendants' Motion for Partial Dismissal of Plaintiffs' Amended
Complaint, Doc. 26, is granted as to any and all Counts and claims challenging Corps'
exemptions and Nationwide Permit determinations that were discussed during the January 25,
2005 meeting as having been granted, authorized, or determined. It is further
ORDERED that Defendants' Motion for Partial Dismissal of Plaintiffs' Amended
Complaint, Doc. 26, is granted as to all claims the viability of which hinges on considering the
August 30,2010 letter to be a final agency action. It is further
ORDERED that Defendants' Motion for Partial Dismissal of Plaintiffs' Amended
Complaint, Doc 26, is denied to the extent that it seeks dismissal of the Corps' exemptions and
Nationwide Permit determinations as non-justiciable, but granted to the extent that the Corps'
decisions not to modify, suspend, or revoke those determinations are non-justiciable. It is further
ORDERED that the parties cooperate with the Court in scheduling either a separate
evidentiary hearing to determine what exemptions and Nationwide Permit determinations were
in fact discussed at the January 25, 2005 meeting as having been granted, authorized, or
determined, or a single trial on all remaining claims at which evidence regarding the January 25,
2005 meeting could be presented with all other evidence.
Dated January 18,2013.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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