Sisseton-Wahpeton Oyate of the Lake Traverse Reservation et al v. United States Corps of Engineers et al
Filing
69
OPINION AND ORDER CONCERNING PARTIAL DISMISSAL OF PLAINTIFFS' COMPLAINT AND SCHEDULING OF TRIAL. Signed by U.S. District Judge Roberto A. Lange on 9/18/2014. (JLS)
FILED
SEP 18 201~
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
SISSETON-WAHPETON OYATE OF
THE LAKE TRAVERSE
RESERVATION and ROBERT
SHEPHERD, Chainnan,
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.
I.
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CIV 11-3026 -RAL
OPINION AND ORDER
CONCERNING PARTIAL
DISMISSAL OF PLAINTIFFS'
COMPLAINT AND
SCHEDULING OF TRIAL
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Introduction
Plaintiffs Sisseton-Wahpeton Oyate of the Lake Traverse Reservation (the Tribe) and
Robert Shepherd (Shepherd), the Tribe's chainnan, 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 (the Corps), Steven E. Naylor (Naylor), in his
official capacity as Regulatory Program Manager, and Robert 1. Ruch, in his official capacity as
District Commander. Plaintiffs' Complaint challenges the Corps' granting of certain § 404
exemptions and Nationwide Pennits 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. The Defendants filed a Motion for Partial Dismissal of
Plaintiffs' Amended Complaint, Doc. 26, which this Court addressed through a prior Opinion and
Order Granting in Part and Denying in Part Motion for Dismissal. Doc. 32.
In that prior Opinion and Order, this Court wrestled with whether some ofthe Plaintiffs'
claims were barred by the six-year statute of limitations based on what the Tribe learned from
a meeting on January 25,2005, about the Corps' decision making regarding Drake's requests.
This Court, among other things, granted Defendants' Motion for Partial Dismissal of Plaintiffs'
Amended Complaint "as to any and all Counts and claims challenging [Defendants'] exemptions
and Nationwide Permit determinations that were discussed during the January 25, 2005 meeting
as having been granted, authorized, or determined." Doc. 32 at 22. This Court's ruling was
couched in such language because:
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 ofthe statute of limitations 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 of witnesses. The Plaintiffs filed their
Complaint on November 7,2011, Doc. 1, after the running ofthe
six year statute of limitations for those permits and exemptions
discussed on January 25, 2005, as having been granted,
authorized, or determined.
Doc. 32 at 13. After issuing that Opinion and Order, this Court held two evidentiary hearings
and allowed the parties to file additional briefing. This Court now rules on the issue left open
in the prior Opinion and Order.
II.
Legal Standard
Plaintiffs' action against the Defendants is brought pursuant to the Administrative
Procedures Act, under which the United States has waived sovereign immunity on behalf of
agencies such as the Corps. 5 U.S.c. § 702 (2012). Such suits, however, "shall be barred unless
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the complaint is filed within six years after the right of action first accrues." 28 U.S.c. §
240 lea); see Izaak Walton League ofAm., Inc. v. Kimbell, 558 F.3d 751,758-59 (8th Cir. 2009)
(applying six-year statute oflimitations to an Administrative Procedures Act case).
A claim against a governmental agency first accrues "on the date when all the events have
occurred which fix the liability ofthe Government and entitle the claimant to institute an action."
Izaak Walton, 558 F.3d at 759 (quoting Chandler v. U.S. Air Force, 255 F.3d 919,921 (8th Cir.
2001)). "A cause of action accrues when there are facts enabling one party to maintain an action
against another." Victor Foods, Inc. v. Crossroads Econ. Dev. of St. Charles Cnty., Inc., 977
F .2d 1224, 1226 (8th Cir. 1992) (per curiam). With regard specifically to § 240 1(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. U.S. Dep't ofHous. & Urban Dev., 678 FJd
626,629 (8th Cir. 2012) (quoting Izaac Walton, 558 F.3d at 759); see also Loudner v. United
States, 108 F .3d 896, 900 (8th Cir. 1997). Because a statute oflimitations in an Administrative
Procedure Act case is a jurisdictional limitation, "the plaintiff will have the burden ofproofthat
jurisdiction does in fact exist." Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990)
(citation omitted); Runs After v. United States, No. CIV 10-30 19-RAL, 2012 WL 2951556, at
*6 (D.S.D. July 19,2012).
III.
Material Facts Regarding Tribe's Knowledge
It is an issue of fact to determine whether the Plaintiffs "knew, or in the exercise of
reasonable diligence should have known, that [they] had a claim" at the time of and as a result
from the January 25,2005 meeting. See Izaac Walton, 558 F.3d at 759. The Corps had issued
two exemptions and two Nationwide Permit findings to Drake prior to the January 25, 2005
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meeting. The Corps had not furnished the Tribe or any of its representatives with any ofthe two
exemption letters or two Nationwide Permit letters. Thus, what occurred at the January 25,2005,
meeting is pivotal to determining if the Tribe knew or should have known that it had a claim
regarding the Corps' actions at that time.
A.
Background and Corps' Decisions
Some background is required to understand the Corps' actions and the setting of the
January 2005 meeting. In or around 1993, Drake, who is not a tribal member, bought a home
on Enemy Swim Lake in an area to the south of Enemy Swim Creek. Doc. 45 at 84-85. The
mouth of Enemy Swim Creek is sometimes called an inlet of Enemy Swim Lake. In or around
1996, Drake purchased agricultural land near his lake home that included land on either side of
Enemy Swim Creek and its inlet to Enemy Swim Lake. Doc. 45 at 85.
The Tribe considers Enemy Swim Lake to be of tremendous cultural and religious
significance. Doc. 16 at ~ 2. There are burial grounds at or 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. The Tribe owns some of the land at Enemy Swim Lake.
In 1998, Drake proposed to the Corps to build a seventy-foot span bridge with approach
berms across the mouth of Enemy Swim Creek near its inlet to Enemy Swim Lake for access by
livestock and equipment. Defendant's Ex. A. The Corps on August 18, 1998, issued a letter to
Drake deeming such an agricultural road across the Enemy Swim inlet to be "exempt from
requiring a Department of the Army Permit per regulations found at 33 C.F.R. Part 323.4."
Defendant's Ex. A. The Corps placed conditions on the project, cautioned Drake about the need
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to receive approvals from other agencies, and indicated that further authorization may be
required should there be changes made in the project. Defendant's Ex. A. Neither Drake nor the
Corps notified the Tribe of the Corps' decision at the time of the issuance of this exemption.
Drake never built the 70- foot span bridge across the inlet or mouth ofEnemy Swim Creek. Doc.
45 at 180-81, 187. Drake appears to have abandoned any intention to build a road across the
mouth of Enemy Swim Creek in favor of a different road discussed later in this Opinion and
Order. Doc. 57 at 31-32.
In 2000, Drake requested authorization for site grading and construction ofan access road
associated with a three-tenths ofan acre wetland fill for residential lot development. Defendant's
Ex. B. That wetland fill and road was to the south ofthe inlet to Enemy Swim Lake, apart and
away from Enemy Swim Creek. Doc. 45 at 181-82. Drake also sought authorization for
construction of a culverted agricultural road at a second location, which is to the south ofa later
road central to this case. Defendant's Ex. B; Doc. 45 at 181-82, 187-88. The Corps, on June
6, 2000, sent Drake a letter advising that the Corps "has determined that your work within South
Dakota for site grading and access road is authorized by the Department ofthe Army Nationwide
Permit No. (26)," and that the "culverted road crossing is exempt from further Department of
Army authorization." Defendant's Ex. B. Again, the letter cautioned Drake about other possible
permit requirements and the need to obtain additional authorizations if there was a deviation
from the original plans. Defendant's Ex. B.
By 2000, Drake was in a dispute with at least one of his neighbors, Doug Block, over
road access and Drake's activities in the areas covered by the 2000 Nationwide Permit and
exemption determination. Doc. 45 at 85-88. The Tribe was not involved in that dispute between
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and among the non-tribal members who owned lake homes and cabins and property to the south
of Enemy Swim Creek.
In 2003, Drake applied to the Corps to construct a culverted farm road approximately
four feet high with a twenty-foot wide top across a wetland adjacent to Enemy Swim Creek
ostensibly to provide access for livestock and equipment. Defendant's Ex. C; Doc. 45 at 182-83.
This is the project that was the focus ofmuch of the evidentiary hearings, as this is the road that
cuts through the wetlands just to the south ofEnemy Swim Creek. Doc. 45 at 182-83, 187-88.
On December 2, 2003, the Corps responded by deeming this "culverted farm road ... to provide
access for livestock and equipment" to be exempt under 33 C.F.R. Part 323.4. Defendant's Ex.
C; Doc. 45 at 182-83. Farm roads generally are exempt from the § 404 permitting, and the
Corps relied upon Drake's representation that this would be a farm road. Doc. 45 at 207-09. By
2003, however, there were indications that Drake may have been using a pretense of an
agricultural road to construct a road contemplating future commercial or residential development
of his property. Doc. 45 at 87-88,171-72. There was no development of this road in 2003,
Defendant's Ex. E, but substantial development of the road by 2005. Defendant's Ex. F.
Also, in 2003, Drake sought authorization from the Corps for a different culverted road
across a wetland approximately 375 feet long with an 18 foot wide top. Defendant's Ex. D; Doc.
45 at 183-84. This road likewise is to the south ofEnemy Swim Creek in the area ofthe homes
and cabins on Enemy Swim Lake, rather than in the immediate proximity ofEnemy Swim Creek
and its inlet. Doc. 45 at 187-88. The Corps, on December 4,2003, found the Nationwide Permit
to permit such a road within and subject to certain conditions. Defendant's Ex. D.
B.
The Tribe's Initial Involvement
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The Tribe owns land just to the north ofDrake's property, farther north of Enemy Swim
Creek than Drake's land. Doc. 45 at 21; Plaintiffs' Ex. P-X; Plaintiffs' Ex. P-AA. The Tribe has
a Tribal Realty Office that is responsible to oversee management of the approximately 28,000
acres of tribal land and the approximately 60,000 acres ofland owned by tribal members. Doc.
45 at 18-19. The current Tribal Realty director is Alvah Quinn, Sf. Doc. 45 at 18-19.
Prior to becoming director of the Tribal Realty Office, Quinn was the Tribe's Fish and
Wildlife director, chief wildlife ranger, and oversaw the land operations department. Doc. 45
at 18. As the Fish and Wildlife director, Quinn's responsibilities were to manage the Fish and
Wildlife resources and to enforce tribal game laws. Doc. 45 at 19. The Tribe has a separate
Office ofEnvironmental Protection that usually deals with clean water issues, but Quinn has not
worked for that office. Doc. 45 at 20.
Sometime before November 8, 2004, Quinn received a call from either Drake or Block
about "a bridge going in on the mouth of the stream," meaning a bridge across the mouth of
Enemy Swim Creek as the 1998 exemption would have allowed. Doc. 45 at 21; see Defendant's
Ex. A. Quinn did not know that the Corps had issued exemptions and Nationwide Permits to
Drake at that time. Doc. 45 at 25. Quinn's primary concem was about fish migration and ice
chunks lodging beneath any bridge or in any culvert to be installed by Drake. Doc. 45 at 26.
Quinn also was concerned about Drake developing the property. Doc. 45 at 27.
Quinn phoned James Oehlerking, who was a civil engineer employed by the Corps and
involved in § 404 permitting. Doc. 45 at 21,25; Doc. 57 at 33. Oehlerking took notes of his
conversation with QuiJ?Il. Doc. 27-7 at 2,5. Oehlerking recalled that Quinn identified himself
as the land manager for the Tribe and expressed concerns about Drake's activities and the effect
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on traditional fishing. Doc. 57 at 33-34. Oehlerking understood his discussion with Quinn to
be about the wetlands crossing road, that is, the road pennitted by the 2003 exemption. Doc. 57
at 33-34; ~ Defendant's Ex. C. Quinn, by contrast, recalled that he and Oehlerking discussed
only the possibility of the bridge crossing the mouth of Enemy Swim Creek and that he did not
understand any other activity to have been pennitted at that time. Doc. 45 at 28. From the lake
itself and from the Tribe's land, the terrain restricted the view of Drake's road through the
wetland immediately south ofEnemy Swim Creek being constructed. Doc. 45 at 29-31, 161-65,
171. Thus, the phone conversation of November 8, 2004 between Quinn and Oehlerking
indicates some awareness by a tribal officer of the Corps having pennitted bridge or road work
to be done by Drake, but is not sufficient infonnation by which the Tribe's cause of action to
challenge such exemption decisions by the Corps accrued.
C.
January 25, 2005 Meeting
United States Senator Tim Johnson's office received complaints about Drake's
development efforts and the Corps' pennits and exemptions issued to Drake. On January 25,
2005, at the behest ofSenator Johnson's office, the Corps convened a meeting at the Day County
courthouse in Webster, South Dakota. A sign-up sheet records the names of thirty-five people
in attendance. Defendant's Ex. G. Alvah Quinn attended and signed the sheet "SWO-Realty"
leaving a tribal office phone number. Floyd DeCoteau accompanied Quinn at Quinn's invitation
and likewise listed "SWO-Realtytl with the tribal realty office phone number. Defendant's Ex.
G; Doc. 45 at 70-71.
At its two evidentiary hearings, this Court heard testimony from eight of those in
attendance at the meeting. Those eight witnesses agreed in part and disagreed in part regarding
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what was discussed. All agreed that the Corps, primarily through David LaGrone, facilitated the
meeting and centered the meeting on what Drake had been allowed to do. Doc. 45 at 220. No
one received any handouts at the meeting. Doc. 45 at 33, 71; Doc. 57 at 41,54. The meeting
lasted at least two hours, Doc. 45 at 82-83, and became heated. Indeed a newspaper article
described the meeting as "[a] three-hour, knock-down, drag-out mediation session, hosted by the
Army Corps of Engineers and Senator Tim Johnson's office [which] did little to resolve an
Enemy Swim Lake shoreline spat." Defendant's Ex. H.
The seemingly most neutral and reliable witness who testified was Leslie Murphy, I who
attended on behalf of the South Dakota Game, Fish & Parks Department. Doc. 57 at 7-8.
Murphy took notes at the meeting, transposed those notes into an email sent the next day to
certain State of South Dakota department heads, and retained her notes and email message. Doc.
57 at 9; Defendant's Ex. I; Defendant's Ex. 1. Neither Murphy nor the State of South Dakota is
an interested party in this lawsuit. Murphy recorded in her notes that Alvah Quinn for the Tribe
was "concerned over new road" and that the n[n]ew road will disturb spring spawning run."
Murphy then recorded that Quinn "saw location map, concerns disappeared-road not going
where they thought." Defendant's Ex. I; Doc. 57 at 13-14. Murphy remembered that the Corps
and those at the meeting discussed both a big road through the wetlands area and smaller projects
to the south of the inlet. Doc. 57 at 16.
'Sometime between the January 25, 2005 meeting and the November 7, 2013 evidentiary
hearing, Murphy changed her name from "Leslie Peterson" to "Leslie Murphy." Doc. 57 at 7.
Thus, documents from and about the meeting refer to Murphy as "Leslie Peterson." This Court will
refer to Murphy by the name she used at the time of her testimony.
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Murphy's testimony parallels the testimony of other witnesses.
LaGrone recalled
discussing each of the four letters to Drake providing exemptions and Nationwide Permits,
having the goal to explain each of them and why the actions were taken, and sketching out on
butcher block paper what areas were involved in those exemptions and Nationwide Permits.
Doc. 45 at 220-22. LaGrone remembered Block and others expressing concerns about roads
crossing the wetlands. Doc. 45 at 222. LaGrone said that the Corps would determine ifit needed
to suspend or revoke the exemptions and Nationwide Permits and suggested that the upset
homeowners such as Block establish a homeowners association.
Doc. 45 at 222-23.
Oehlerking, who was the Corps' primary point of contact with Drake for the exemptions and
Nationwide Permits, attended but did not speak at the meeting. Oehlerking recalled that the
discussion included talk ofthe exemption granted in 2003 for the so-called agricultural road just
to the south of Enemy Swim Creek. Doc. 45 at 36-37. Oehlerking remembered wide ranging
discussion at the meeting on various issues as well. Doc. 45 at 42.
Danny Smeins, a private attorney who was the Day County state's attorney, attended the
meeting as well. Doc. 45 at 234. Smeins remembered that the initial focus of the meeting was
on discussing the road just south ofthe inlet ofEnemy Swim Creek, but remembered the meeting
devolving into other issues and discussion of other ofDrake's road projects. Doc. 45 at 235-38.
Smeins, who has represented neither Drake nor Block, recalled the Corps officials trying to
explain why permits and exemptions had been granted. Doc. 45 at 239,241.
Those with an interest in stopping Drake's activities have a somewhat different version
ofthe meeting. Quinn's focus was on the possible bridge across the mouth of the stream. Doc.
45 at 33. Quinn recalled Block and Drake arguing, primarily about a slough to the south of
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Enemy Swim Creek. Doc. 45 at 34-35. Quinn did not recall who was in charge ofthe meeting,
but recalled no decisions being made. Quinn remembered only speaking at the meeting to
introduce himself. Doc. 45 at 35. However, when presented with the news article reported on
the meeting, Quinn recalled talking with the reporter and confirmed the accuracy of what the
reporter quoted Quinn as having said. Doc. 45 at 55-57. The news article, with regard to
Quinn's comments, stated:
Alvah Quinn, Sisseton-Wahpeton Tribal Wildlife Director said
the Tribe is concerned about Drake's latest road for environmental
reasons. He said the road could negatively impact spawning fish
and that the road culvert capacity is a concern, given the upstream
drainage area. "We do have concerns about the fish in the
stream," he said after the session. "Somebody, whether it's a
state, federal, or county agency needs to step up and enforce the
laws they have. I don't understand how the Corps people, who
don't even live here, or never have seen this stream in the spring,
could come up with this decision." Quinn will take his concerns
back to the tribal council which is expected to develop a position
shortly.
Defendant's Ex. H. Quinn did not recall whether he took his concerns back to the tribal council.
Doc. 45 at 58.
Similar to Quinn's testimony, DeCoteau remembered discussion at the January 2005
meeting about a crossing at the mouth of the stream and did not recall any discussion of some
crossing farther up the creek. Doc. 45 at 72-75. DeCoteau remembered a very heated exchange
between Drake and Block. Doc. 45 at 78-79. DeCoteau described a two-hour long meeting,
which left him feeling as ifhe knew very little. Doc. 45 at 82-83.
Block, contrary to the testimony of other witnesses, denied arguing with Drake at the
meeting, but openly admitted that he argued with LaGrone. Block remembered that LaGrone
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presided over the meeting and that there was some confusion about permits and exemptions.
Doc. 45 at 94. Block had prepared a presentation with maps and photographs and was frustrated
that LaGrone would not allow him to proceed with his presentation, which led to his conflict
with laGrone. Doc. 45 at 95-98. Block originally testified that he raised the issue of the road
through the wetlands to the south of Enemy Swim Creek at the meeting. Doc. 45 at 118-19. At
the second evidentiary hearing, however, Block testified that he was prepared to raise a concern
about the road crossing through the wetlands to the south of Enemy Swim Creek, but was not
allowed to do so. Doc. 57 at 65. When confronted with his prior testimony, Block then
acknowledged that he did raise the issue of the road to the south of Enemy Swim Creek. Doc.
57 at 67. Block certainly believed that he was not given a fair opportunity to air his grievances
about Drake's activities at the meeting. Doc. 45 at 95-98; Doc. 57 at 65-67.
Witness Scott Grebner remembered relatively little about the meeting. Grebner recalled
that Block was there to do a presentation and was not allowed to do so and then got frustrated.
Doc. 57 at 55. Grebner had no recollection ofdiscussion ofroads through the wetlands and was
unaware that Drake was building a road there. Doc. 57 at 55-56. He recalled that the Corps
expressed that they were there to listen to concerns. Doc. 57 at 55.
In short, the Corps hosted and sought to maintain control of the January 25, 2005
meeting. The Corps, through LaGrone, sought to describe the exemptions and Nationwide
Permits that had been issued. Doc. 45 at 220-22. These covered four different projects-a
bridge over the mouth of Enemy Swim Creek that had never been constructed, a road through
the wetland just to the south of Enemy Swim Creek, and two projects involving fill and roads
to the south of the inlet in the residential area. The meeting was quite large with over thirty-five
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people in attendance and lasted quite a long time, apparently between two and three hours.
Defendant's Ex. G; Defendant's Ex. H; Doc. 45 at 82-83. The focus of the meeting varied
between the road to the south of Enemy Swim Creek and the issues surrounding Drake's
activities farther south in the area of the lake residences. To those like DeCoteau and Grebner
who had little familiarity with Drake's projects before the meeting, it likely was confusing which
exemption or Nationwide Permit was being discussed at any particular time.
The varying concerns and goals of those attending caused discussion to range from
development along or at Enemy Swim Creek to much discussion about development to the south.
The Corps' goal was to explain what it had done, listen to those who were there, and hope that
doing so might resolve or assuage concerns and conflicts. Block's goal was to present maps and
photos and take control of the meeting at least for some period oftime to explain why the Corps
ought to stop Drake from any development or projects. Quinn'S goal and the Tribe's interests,
meanwhile, were to prevent disruption of the inlet and Enemy Swim Creek to allow for
migration of fish and to prevent harmful changes to Enemy Swim Lake. It appears that no one's
goal-other than those in attendance just to listen such as Murphy and Smeins-was met.
The ultimate issue at the evidentiary hearing, however, was not whether certain goals
were met. Rather, the question is whether the Tribe either knew, or in the exercise ofreasonable
diligence should have known, that it had a claim about the Corps' issuance of exemptions and
Nationwide Permits based on information from the January 25,2005 meeting. As concerns the
two exemptions decisions and two Nationwide Permits predating the January 25,2005 meeting,
the Tribe did receive information where it either knew or in the exercise of reasonable diligence
should have known about those four agency decisions. Doc. 45 at 58, 220-22; Defendant's Ex.
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H; Defendant's Ex. I; Defendant's Ex. J. Each of those matters were raised at the meeting.
Quinn, the principal representative of the Tribe in attendance, acknowledged the accuracy ofhis
post-meeting quote about the need for a regulatory agency to "step up and enforce the laws they
have" and "I don't understand how the Corps people ... could come up with this decision."
Defendant's Ex. H; Doc. 45 at 55-57. Quinn at the meeting came to understand that no bridge
was going to be built over the mouth ofthe Enemy Swim Creek and thus some ofhis concerns
dissipated. Doc. 57 at 13-14; Defendant's Ex. 1. There was discussion of the road through
wetlands area to the south of Enemy Swim Creek, albeit not to the extent and of the nature that
Block wanted. Quinn may not have fully perceived what Drake's next step from that road may
be, but the fact that the Corps had exempted such a road for agricultural purposes was discussed.
Defendant's Ex. H; Defendant's Ex. I; Defendant's Ex. J; Doc. 45 at 118-19,220-23,234-36;
Doc. 57 at 13, 37. The meeting included discussion of all of the Nationwide Permit and
exemption decisions that had been made through January 25,2005 for the benefit ofDrake at or
near Enemy Swim Creek. Doc. 45 at 220-22.
D.
Authority of Quinn and DeCoteau
Plaintiffs alternatively suggest that Quinn and DeCoteau were not truly representing the
Tribe at the meeting or that their presence at the meeting does not thereby provide the Tribe with
notice of its claims. The Plaintiffs imply that perhaps someone from the Tribe's Environmental
Protection Agency, which deals with clean water issues, needed to be in attendance for the Tribe
to have sufficient notice. See Doc. 45 at 20, 70. Although this Court agrees that attendance by
a mere member ofthe Tribe is insufficient to provide the Tribe notice ofa potential claim, Quinn
and DeCoteau were not mere members of the Tribe.
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"For purposes of detennining a principal's legal relations with a third party, notice of a
fact that an agent knows or has reason to know is imputed to the principal
if knowledge ofthe
fact is material to the agent's duties to the principal ...." Restatement (Third) ofAgency § 5.03
(2006) (emphasis added); see also St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 700
(1992). Though not as often invoked for purposes ofapplying a statute oflimitations as for other
legal relations such as liabilities, the rule is generally applicable. Veal v. Geraci, 23 F.3d 722,
725 (2nd Cir. 1994) (imputing knowledge oflawyer-agent to client-principal to detennine when
a claim accrued for purposes ofthe statute oflimitations); see also United States v. Josleyn, 206
F.3d 144,
157~59
(lst Cir. 2000) (imputing knowledge ofnewly discovered evidence known to
a director ofa corporation to the corporation for the purpose ofa motion for a new trial); Martin
Marietta Corp. v. Gould, Inc., 70 F.3d 768 (4th Cir. 1995) (applying agency law principles of
imputation ofknowledge to the issue ofwhether the statute of limitations barred a claim brought
by a corporation). Furthennore, this principle applies outside the context of corporate or
business law, and may be applied to government entities that act through agents. See Tonelli v.
United States, 60 F.3d 492,495 (8th Cir. 1995) (applying the imputed knowledge doctrine to
the U.S. Postal Service). Thus, the issue is whether the facts discussed about Drake's plans and
the § 404 exemptions and Nationwide Pennits relevant thereto were material to the scope of
either Quinn's or DeCoteau's responsibilities.
Quinn and DeCoteau both signed in as "s W0-Realty," indicating that they were attending
the meeting as representatives of the Tribe's realty office, which they in fact were. Defendant's
Ex. G; Doc. 45 at 18, 70. In January 2005, Quinn was responsible for managing the Tribe's "fish
and wildlife resources." Doc. 45 at 20. Quinn testified at the November 5th hearing that the
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possibility of erosion "fill[ing] in the stream" could negatively affect fish spawning. Doc. 45 at
26. Although he does not recall it now nine years later, Quinn, according to notes taken at the
time, spoke at the meeting about the Tribe's concern about whether the "new road will disturb
spring spawning run." Defendant's Ex.
I~
Defendant's Ex. J. A news reporter's printed article
attributed that comment to Quinn as a "tribal wildlife director," and spoke with Quinn afterwards
who expressed the Tribe's concern for Drake's latest road based on the impact on spawning fish
and culvert capacity. Defendant's Ex. H. Quinn also told the reporter that he would take
concerns back to the tribal council. Defendant's Ex. H. Quinn acknowledged the accuracy of
the reporter's recordation ofthese quotes. Doc. 45 at 56-57. While Quinn denies having had any
responsibilities relating to the Clean Water Act, Doc. 45 at 20, that is of no consequence with
regard to imputation of the knowledge he acquired at the meeting on January 25,2005, so long
as the facts he learned were material to his responsibilities to the Tribe. At the meeting, Quinn
learned that the Corps ofEngineers had made decisions about § 404 exemptions and Nationwide
Permits that would allow Drake to discharge fill material into Enemy Swim Lake. Those facts
were material to his responsibility of managing Tribal wildlife resources because such fill
material can affect spawning. Therefore, the facts Quinn learned at the January 25, 2005 meeting
regarding the § 404 exemptions and Nationwide Permits are imputable to the Tribe.
Moreover, Quinn was no temporary or low-level employee of the Tribe; he has worked
for the Tribe for the past thirty-four years. Doc. 45 at 18-19. It is troubling that the Corps did
not advise the Tribe directly,2 but the Corps understood the Tribe to lack regulatory control over
2The Corps later met with the Tribe on July 31, 2009 at a tribal council meeting. Plaintiffs
Ex. 59; Doc. 45 at 36-38.
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land owned by a non-tribal member. Doc. 57 at 51. Nevertheless, Quinn, attending the meeting
on behalf of the Tribe and not merely as a concerned citizen, received information on January
25,2005, sufficient to be aware of the Nationwide Permits and exemption decisions regarding
Drake's activities.
IV.
Conclusion and Order
This is not to say that all of the Plaintiffs' claims against the Corps are time barred.
Some, but fewer than all, of the Plaintiffs' claims were filed within the statute of limitations
period. Wherefore, based on the reasoning above and on the Opinion and Order Granting in Part
and Denying in Part Motion for Partial Dismissal, Doc. 32, it is hereby
ORDERED that Defendant's Motion for Partial Dismissal of Plaintiffs' Amended
Complaint, Doc. 26, is granted with respect to the exemptions and Nationwide Permit
determinations made on August 18, 1998; June 6, 2000; December 2, 2003; and December 4,
2003. It is further
ORDERED that Defendant's Motion for Partial Dismissal of Plaintiffs' Amended
Complaint, Doc. 26, is denied to the extent that it sought dismissal ofthe Corps' exemptions and
Nationwide Permit determinations as non-justiciable, but granted to the extent that the Corps'
decision not to modify, suspend, or revoke those determinations are non-justiciable. It is further
ORDERED that those remaining claims, for permi t determinations and other matters that
occurred within six years of the Complaint being filed are not otherwise dismissed. It is finally
ORDERED that counsel for the parties meet to discuss a proposed scheduling order for
placement of the case on the Court's trial docket and submit within twenty-one days a joint
17
motion proposing a scheduling order, or, if the parties cannot agree, separate submissions
proposing dates and providing a brief explanation of why such dates are being proposed .
...
Dated September~, 2014.
BY THE COURT:
UNITED STATES DISTRICT JUDGE
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