Sisseton-Wahpeton Oyate of the Lake Traverse Reservation et al v. United States Corps of Engineers et al
OPINION AND ORDER denying 73 Motion to Compel; granting in part and denying in part 77 Motion to Supplement the Administrative Record ; denying 81 Motion for Reconsideration. Signed by U.S. District Judge Roberto A. Lange on 8/18/2015. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SISSETON-WAHPETON OYATE OF THE
LAKE TRAVERSE RESERVATION; and
ROBERT SHEPHERD, CHAIRMAN,
AUG 18 2015
OPINION AND ORDER ON PENDING
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
Sisseton-Wahpeton Oyate of the Lake Traverse Reservation and Robert Shepherd, the
Tribe's chairman at the time this lawsuit started (collectively, "the Tribe"), filed a Complaint for
declaratory, injunctive, and other relief. Doc. I. Plaintiffs named as Defendants the United
States Corps of Engineers, Robert J. Ruch, in his official capacity as district commander, and
Steven E. Naylor, in his official capacity as regulatory program manager (collectively, "the
Corps"). This Court granted in part Defendants' Motion to Dismiss for Lack of Jurisdiction,
Docs. 32, 69, ordered the Defendants to file the Administrative Record (AR), and set a briefing
schedule, Doc. 71.
On February 5, 2015, the Tribe filed a Motion to Compel Production of the Whole
Administrative Record. Doc. 73. On March 10, the Tribe filed a separate Motion to Supplement
the Administrative Record.
Doc. 77. On May 28, the Tribe filed a Motion to Reconsider
Equitable Tolling Based Upon Intervening Authority_ Doc. 81. The Defendants opposed all
motions in separate briefs. Docs. 76, 79, 84. For the reasons explained below, the Motion to
Compel Production is denied, the Motion to Supplement the Record is granted in part, and the
Motion to Reconsider is denied.
The circumstances leading to this case are described in greater detail in this Court's
previous opinions regarding the motion to dismiss, Docs. 32, 69, but a brief history of the case
helps in understanding the issues framed by the pending motions. The case revolves around
what the Tribe views as a potential commercial development project adversely affecting Enemy
Swim Lake in northeastern South Dakota, which Defendants have allegedly improperly
permitted to occur under the guise of agricultural projects.
Merlyn Drake (Drake), who is not a member of the Tribe, owns land adjoining Enemy
Swim Lake. Doc. 32 at 2. Drake has engaged in certain road and bridge construction activities
in wetland areas adjacent to the lake, along the shore ofthe lake, and across a stream feeding into
the lake. Doc. 32 at 2-3. In response to inquiries from Drake prior to the construction activities,
the Corps sent a series of communications to Drake deeming that his construction activities did
not require individual discharge permits under the Clean Water Act' (CWA) because, as
proposed, they were either exempt from CWA regulation altogether or authorized under a
Nationwide General Permit (Nationwide Permit). Doc. 32 at 3-5.
The Tribe owns land around Enemy Swim Lake, which has cultural and religious
significance to the Tribe. Doc. 32 at 2. The Tribe and others in the area became concerned
'The Clean Water Act prohibits discharge of any pollutants, including sand, rock, and dirt, into
the "waters of the United States" without a permit. 33 U.S.C. §§ 1311, 1362(6), (7).
about Drake's activities on his lakeshore property, and in January 2005, the office of then United
States Senator Tim Johnson organized a meeting to address those concerns at the Day County
Courthouse in Webster, South Dakota.
Doc. 32 at 4.
At that meeting, tribal officials in
attendance became aware of four prior Corps determinations (made on August 18, 1998, June 6,
2000, December 2, 2003, and December 4, 2003), Doc. 32 at 3-4, that Drake's activities did not
require individual discharge permits. Doc. 69 at 16-17.
The Corps later made two more determinations that Drake need not acquire individual
discharge permits for certain activities on his lakeshore property. Doc. 32 at 4-5. On May 1,
2006, the Corps informed Drake through a letter that a proposed bridge across the primary inlet
tributary to Enemy Swim Lake was exempt from CW A permitting as a farm road, and on May 4,
2009, the Corps informed Drake through a letter that another proposed crossing of wetlands
north of the inlet utilizing culverts was authorized under a Nationwide Permit. Doc. 32 at 4-5.
In 2009, the Tribe made a Freedom of Information Act (FOIA) request regarding the
Corps' dealings with Drake and received responsive documents. Doc. 16 at 3; Doc. 18 at 2. In
2009 and 2010, the Tribe and the Corps exchanged several letters. On June 15, 2009, the Tribe
asked the Corps to withdraw its determinations that some of Drake's activities were exempt and
others were authorized by the Nationwide Permits. Doc. 32 at 5. On August 30,2010, the Corps
wrote a letter to the Tribe explaining the bases for the Corps' exemption and Nationwide Permit
decisions and why it continued to believe its decisions were correct. Doc. 32 at 5.
The Tribe's complaint against the Corps sought judicial review of various Corps actions
(and failures to take action) under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701--06.
This Court granted in part the Corps' motion to dismiss in an Opinion and Order dismissing "any
and all Counts and claims challenging Corps' exemption and Nationwide Permit determinations
that were discussed during the January 25, 2005 meeting as having been granted, authorized, or
determined" because they were barred by the statute of limitations. Doc. 32 at 22. Following
two evidentiary hearings, this Court concluded that the determinations made on August 18, 1998,
June 6, 2000, December 2, 2003, and December 4, 2003, were final and known to tribal officials
as a part of the January 25, 2005 meeting, and thus the Tribe's challenges to those determinations
were time barred. Doc. 69 at 17. The Tribe's claims challenging the "Corps' decisions not to
modify, suspend, or revoke those determinations" were dismissed as non-justiciable. Doc. 32 at
22; Doc. 69 at 17. This Court also dismissed all claims the viability of which hinged upon the
Tribe's assertion ofthe August 30, 2010 letter being the sole final agency action. Doc. 32 at 22.
On January 8, 2015, the Defendants filed a compact disc, which contains 756 individual,
often multiple-page documents, that the Corps certified as the administrative record relevant to
Docs. 72, 72-1. The Tribe then filed its Motion to Compel the Whole
Administrative Record, Doc. 73, and its Motion to Supplement the Administrative Record. Doc.
77. On May 28, 2015, the Tribe filed its Motion to Reconsider, requesting that this Court
reconsider its previous decision that the statute of limitations in this case, 28 U.S.c. § 2401(a), is
not subject to equitable tolling because it is jurisdictional. Doc. 81 at 1-2.
Some of the dispute over the motion to compel and motion to supplement the record
revolves around a disagreement between the parties about what claims remain after this Court's
prior orders granting in part the motion to dismiss. The claims dismissed by this Court fell
within three categories: (1) tlnal determinations on which the statute of limitations has run; (2)
claims that depend upon characterizing the August 30, 2010 letter from the Corps to the Tribe as
a final agency action; and (3) non-justiciable enforcement decisions "not to modify, suspend or
revoke a Section 404 permit," Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v.
U.S. Corps of Eng'rs, 918 F. Supp. 2d 962, 970-74 (D.S.D. 2013) (quoting Mo. CoaL for the
Env't v. Corps of Eng'rs, 866 F.2d 1025, 1032 n.10 (8th Cir. 1989)).
Both parties agree that the Corps' May 1,2006 determination of Drake's activities being
exempt from CWA discharges permit requirements and the Corps' May 4,2009 determination of
Drake's activities being authorized under a Nationwide Permit are final agency actions taken
within the statute of limitations period.
See Doc. 76 at 3.
The challenges to those two
determinations remain active. The Defendants argue that those two claims are the only claims
that remain. Doc. 76 at 3. Thus, Defendants argue they have provided the whole administrative
record relevant to those claims and have no obligation to provide any additional materials. Doc.
76 at 1. In contrast, the Tribe takes the position that its claims "pertaining to Recapture (Count
4), Best Management Practices (Count 5), and Stacking (Count 7)," as well as its National
Historic Preservation Act (NHPA) claim (Count 8) and others, survive as claims challenging
agency inaction and are not fixed at a single point in time. Doc. 73 at 4; Doc. 78 at 1-2. Thus,
the Tribe argues, the Corps has an obligation to tum over records pertaining to all of Drake's
activities near Enemy Swim Lake, including information received after the final Nationwide
Permit verification, because that information is relevant to alleged decisions not to act. Doc. 78
Prior to the January 18, 2013 order on the motion for partial dismissal, the Tribe had
argued that the Corps had not taken final action on the Drake projects until the Corps issued the
letter to the Tribe on August 30, 2010, and thus the letters to Drake notifying him that his
projects did not require individual permits were merely preliminary decisions. Doc. 16 at 23-32;
Doc. 29 at 18-20. The Tribe's original recapture claim, Count 4, explicitly challenged what the
Tribe characterized as "the [Corps'] final decision in 2010 that Drake's activities have not been
recaptured under the [CWA]." Doc. 16 at 27; Doc. 29 at 19-20. Similarly, the best management
practices claim and the allegations regarding Drake's fill of a small spring feeding Enemy Swan
Lake challenged what the Tribe claimed to be a final decision in the August 30, 2010 letter.
Doc. 16 at 27-28; Doc. 29 at 20. This Court rejected the argument that the August 2010 letter
was the final decision and determined that the individual verifications from the Corps notifying
Drake that his proposed projects did not require individual discharge permits were tinal agency
actions for purposes of a challenge under the APA.
Sisseton-Wahpeton Ovate of the Lake
Traverse Reservation, 918 F. Supp. 2d at 972; see also 5 U.S.C. § 704 (making final agency
action subject to judicial review).
For the present motion, however, the Tribe has re-characterized most of its claims as
failure-to-act claims not restricted to a single point in time. Doc. 73 at 4-5; Doc. 78 at 3. In
essence, the Tribe now is arguing that the Corps was required to make a new regulatory
determination with regard to all of Drake's previous projects when it received information that
could lead to the conclusion that Drake was engaged in non-farming activities. Doc. 78 at 1-2
("The Tribe's claims pertaining to Recapture (Count 4), Best Management Practices (Count 5),
and Stacking (Count 7)-if successful-require a permit determination regarding Mr. Drake's
activities and each of those claims ... occurred within six years of the initial filing of the
Complaint in this action." (emphasis added». The Tribe has not sought leave to file a second
amended complaint, and this Court will not allow the Tribe to amend its claims through a motion
to compel or a motion to supplement the record.
Moreover, claims that an agency has failed to take an action must allege that the agency
was required to take the discrete action sought. Norton v. S. Utah Wilderness All., 542 U.S. 55,
64 (2004). Thus, even if the Tribe properly pleaded such claims, it would have to show both (1)
that the Corps has a non-discretionary duty to investigate allegations of non-exempt discharges
or discharges that do not comply with applicable permits, and (2) that, if the allegations are
substantiated, the Corps must order the discharger to cease and remedy any damage or to acquire
or comply with a permit. The Corps certainly has authority to investigate and impose sanctions
for violations of the CWA. 33 U.S.C. § 1319. However, that CWA enforcement authority is
considered to be discretionary. See Dubois v. Thomas, 820 F.2d 943, 950-51 (8th Cir. 1987)
(finding non-justiciable a claim seeking to compel enforcement action against an alleged violator
of the CW A). Citizens may not "commandeer the federal enforcement machinery"; they may
only supplement it through direct actions of their own against violators. Id. at 949. The Tribe
thus cannot compel the Corps to investigate allegations of CWA violations through judicial
The Tribe's remaining claims challenge the two final decisions made by the Corps within
the statute of limitations verifying that Drake need not apply for individual discharge permits, the
decisions by the Corps that the proposed projects that were the subject of the 2006 and 2009
2The Tribe argues that the Corps has no discretion to allow discharges of regulated pollutants
without a permit. Doc. 78 at 4 (citing United States v. Brace, 41 F.3d 117, 124 (3d Cir. 1994).
The Tribe's reliance on Brace is misplaced. Brace deals with a defendant in an action brought by
the United States for a violation of the CWA and his burden to show that his actions were
exempt from regulations. Brace 41 F.3d at 119, 124. That case does not stand for the
proposition that the Corps has a duty to take action whenever there is any violation, however
technical, of the CWA.
verifications were not federal undertakings subject to the NHPA, and the Corps' alleged
coaching of Drake on how to avoid CWA issues. 3
Motion to Compel
The Tribe seeks review of the Corps' decision-making under the APA, which generally is
limited to review of the record before the agency at the time of the agency action. 5 U.S.C.
§ 706; Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,420 (1971) overruled on other
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977); Voyageurs NaC1 Park Assoc. v.
Norton, 381 F.3d 759, 766 (8th Cir. 2004). In a challenge to an informal administrative decision
making such as this proceeding, the record does not necessarily contain transcripts of formal
administrative proceedings or evidentiary hearings. See generally 33 Charles Alan Wright &
Charles H. Koch, Jr., Federal Practice and Procedure: Judicial Review of Administrative Action
§ 8306, at 74-75, § 8330, at 150-52 (2006). Instead, the record is the information actually
considered by the administrator. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
This limitation serves to limit judicial review to the propriety of the agency's decision and
discourage substitution of a court's judgment for the agency's as in a de novo review.
Voyageurs Nat'l Park Assoc., 381 F.3d at 766 (citing United States v. Morgan, 313 U.S. 409,
"When there is 'a contemporaneous administrative record and no need for
additional explanation of the agency decision, "there must be a strong showing of bad faith or
improper behavior" before the reviewing court may permit discovery and evidentiary
supplementation of the administrative record. '" Id. at 766 (quoting Newton Cty. Wildlife Ass'n
v. Rogers, 141 F.3d 803,807-08 (8th Cir. 1998)).
3The Corps did not seek dismissal of the NHP A claim or the coaching claim to the extent that the
decisions and conduct fell within the statute of limitations. See Doc. 26.
This motion, however, presents a somewhat different issue than cases where a party seeks
to supplement the record. Here, the Tribe alleges that the Corps is withholding parts of the
administrative record used to make the determinations at issue. The Corps asserts that the
administrative record is complete for the remaining claims and argues that it is entitled to a
presumption that it has acted properly absent "'clear evidence to the contrary.'"
Doc. 76 at 6
(quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993». Courts generally
"accord Government records and official conduct a presumption of legitimacy." U.S. Dep't of
State v. Ray, 502 U.S. 164, 179 (1991); United States v. Chem. Found., Inc., 272 U.S. 1, 14-15
(1926) (citations omitted). The presumption of regularity is not so much a rule of evidence as it
is "a general working principle." NaCI Archives & Records Admin. v. Favish, 541 U.S. 157,
Generally, the Supreme Court has required a party seeking to overcome the presumption
that a Government official has acted properly to present "clear evidence to the contrary." E.g.,
United States v. Armstrong, 517 U.S. 456,464 (1996) (quoting Chem. Found., 272 U.S. at 14
15). However, a lower standard may apply in unique circumstances. Favish, 541 U.S. at 174-75
(holding that a FOIA document requester who has been denied access to documents on the basis
of a third-party privacy interest must produce evidence "that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred" to assert a
public interest in exposing improper or negligent conduct by a Government officer to weigh
against the privacy interest). The standard required to overcome the presumption of regularity in
Armstrong--clear evidence to the contrary-is appropriate in this case because the
countervailing policy interests militating for the less stringent standard applied in Favish are not
In Favish, the Supreme Court noted that the FOIA policy generally making
Government documents available for review by the public helped justify a less stringent standard
for overcoming the ordinary presumption of regularity. Id. at 174. By contrast, judicial review
of an administrative action is intended to be a narrow review to ensure that the administrative
decision is justified by the record, see Camp v. Pitts, 411 U.S. 138 (1973) (per curiam), and too
much interference in the administrative decision-making process risks negating expertise and
efficiency advantages that should inhere in the administrative process. Wright & Koch, supra
§ 8330, at 144-46.
Therefore, the Tribe has to show clear evidence to contradict the
presumption that the Corps has provided the complete administrative record. See also Bar MK
Ranches, 994 F.2d at 739-40 (denying plaintiffs' motion to supplement the record because they
had not offered clear evidence that the administrative record supplied by the agency was
The Corps filed the administrative record with a certification from Defendant Steven N.
Naylor, the Corps' State Program Manager for South Dakota, declaring that the documents filed
constituted the administrative record for the May 1, 2006 exemption determination and the May
4, 2009 Nationwide Permit determination. Doc. 72-1. The Tribe asserts that the administrative
record should include other documents concerning Drake's activities. Most of the documents the
Tribe considers to be missing were generated by or disclosed to the Corps after the May 4,2009
determination, but some predate the May 4, 2009 determination or are undated. Docs. 73-1, 78
1. The Tribe has provided a list of documents it believes to be missing from the record, of which
it became aware through FOIA requests. Docs. 73-1, 78-1. The Tribe has not offered any other
evidence that the record filed by the Corps is not in fact the record considered by the Corps when
making the challenged determinations or that the record was incorrectly compiled.
The Tribe's list of allegedly missing documents falls short of clear evidence rebutting the
presumption of regularity. First, many of the documents that the Tribe claims should be part of
the administrative record are documents generated after the latest of the determinations being
challenged in this case. See Doc. 78-1. As this Court explained above, the only remaining
counts challenge the May 1, 2006 and the May 4, 2009 determinations, alleged coaching of
Drake by the Corps, and alleged NHPA violations. This Court rejected the Tribe's argument that
the Corps' lack of regulation or enforcement action constitutes a continuing wrong. Doc. 32 at
13-14. Judicial review of an administrative decision is limited to review of information that was
before the administrative body at the time of the decision. Voyageurs Nat'l Park Assoc., 381
F.3d at 766. Thus, the documents generated after the latest determination, May 4, 2009, do not
show that the Corps has filed an incomplete administrative record.
Some documents that the Tribe claims should be part of the administrative record were
generated prior to the challenged determinations. However, several of those documents are in
fact included in the record or would not have been relevant to the determinations being
challenged. For example, at "FOIA Tab" numbers 62 and 64 in the Tribe's list of alleged
discrepancies between documents it knows of and the administrative record, the Tribe identifies
documents from the fall of 2005 that it claims are not in the record. Doc. 78-1 at 5. Of the
documents listed in FOIA Tab number 64, the Tribe argues that only one-the handwritten notes
from a phone conversation with Drake-were included in the administrative record. Doc 78-1 at
5. But this Court was able to locate the following documents from FOIA Tab number 64 in the
administrative record: (1) the jurisdictional determination document and the map entitled "M
Drake Ag Access Road Roberts Co." are in the administrative record at RA 1560; (2) the
application for Department of the Army Permit, the map entitled "Drake-Day Co.," the hand
drawn bridge description, and the photo are at RA 1455-60; and (3) the map is at RA 1551-52.
There are instances where documents that the Tribe maintains are missing from the record are of
attenuated relevance. For instance, the FOIA tab number 62 document is a letter from Corps'
representative Gary M. Henningsen dated September 15, 2005, to Douglas Block regarding
Block's own FOIA request. Doc 21-62. That letter does not appear to be relevant to whether
Drake's activities required individual discharge permits under the CWA. This Court has not
examined every alleged discrepancy outlined by the Tribe. However, these examples illustrate
that the pre-decision documents the Tribe alleges to be missing from the record do not
necessarily establish clear evidence that the administrative record was improperly compiled. To
the contrary, these examples suggest that the administrative record is more complete than what
the Tribe portrays.
Motion to Supplement the Administrative Record
The Tribe seeks to supplement the record to reflect that "the Corps knew that Mr. Drake
is a developer since at least September 22,2008." Doc. 77 at 3 (emphasis omitted). If the Corps
in 2008 knew Drake in 2008 to be a developer disguising his work around Enemy Swim Lake as
being for agricultural purposes only, the Corps' May 4, 2009 determination is cast in doubt. The
Tribe offers to add affidavits of three tribal employees stating that they were recently informed
by Drake that he intends to develop eighteen lots on the property made accessible by the
challenged construction. Doc. 77-1. The Tribe also wants the administrative record to include
testimony from this Court's 2013 evidentiary hearings held to determine factual issues related to
the motion for partial dismissal of this case. Doc. 77. These proposed additions to the record
would, the Tribe believes, show that the Corps knew by no later than September 22, 2008, that
Drake was a developer and not engaged in agricultural activity. Doc. 77 at 3-5. The Corps
opposes this motion.
As outlined above, challenges to final agency action generally are limited to review of the
record that was before the agency at the time the action was taken. 5 U.S.C. § 706; Overton
Park, 401 U.S. at 420; Voyageurs Nat'l Park Assoc., 381 F.3d at 766. The whole record is the
information actually considered by the Corps before taking an action. Fla. Power & Light Co.,
470 U.S. at 744. This limitation serves to limit judicial review to the propriety of the agency's
decision rather than substitute a court's judgment for the agency's as in a de novo review.
Voyageurs Nat'l Park Assoc., 381 F.3d at 766. There is a "very narrow exception" to this
limited review that allows supplementation of the record only in the "'extraordinary
circumstance[ ]' in which a strong showing can be made that the record is so incomplete as to
preclude effective judicial review or that there is clear bad faith or improper behavior." South
Dakota v. U.S. Dep't of the Interior, 423 F.3d 790,803 (8th Cir. 2005) (quoting Voyageurs Nat'l
Park Assoc., 381 F.3d at 766).
The Corps' decisions and administrative record in this case are sufficient to allow judicial
review, so the Tribe must show that there has been clear bad faith or improper behavior to justify
supplementing the record. The Tribe argues that the evidence with which it seeks to supplement
the record shows bad faith because it demonstrates that the Corps "ignored an important statutory
and regulatory issue-whether Mr. Drake is a developer." Doc. 77 at 5. Further, the Tribe
argues that bad faith is shown because the Corps has, the Tribe claims, failed to disclose to the
Tribe information it had about Drake's alleged development activities in contravention of the
Corps' own tribal consultation policy. Doc. 77 at 5-9. This proposed evidence fails to constitute
a strong showing of bad faith or improper behavior on the part of the Corps to justify
supplementation of the administrative record for review of the final agency decisions.
The three affidavits offered by the Tribe do not show that the Corps acted improperly or
in bad faith when it considered whether Drake's proposed projects required individual permits.
The affidavits state that Drake told Tribal employees in the fall of 2014-0ver five years after
the latest challenged decision-that he planned to develop eighteen "lakeshore units or lots" on
his land north of the inlet to Enemy Swim Lake. Doc. 77-1. This information is disconcerting in
light of Drake obtaining earlier exemptions ostensibly for agricultural purposes and availing
himself of a Nationwide Permit for a possible single home. The affidavits, however, do not
show that Drake had the intent to develop eighteen lots at the time the Corps was considering his
requests in 2006 and 2009, nor that Drake has ever communicated such a plan to the Corps. The
lack of information about the alleged eighteen contemplated lots in the administrative record
does not make a strong showing of the Corps' bad faith.
Likewise, the testimony from this Court's 2013 evidentiary hearings does not establish
improper or bad-faith conduct by the Corps in its compilation of the administrative record. The
Tribe argues that this testimony establishes that the Corps knew Drake was a "developer" by
September 22, 2008, at the latest. Doc. 77 at 3 (emphasis omitted). This argument exaggerates
the testimony of representatives of the Corps, who testified that they were aware by that time
Drake was considering building a house or a cabin north of the inlet. E.g., Doc. 45 at 192
(Defendant Naylor acknowledging reading notes from phone calls in which the Corps received
information from a concerned neighbor that Drake may be preparing a site for a "home or
homes"); Doc. 45 at 194 (Defendant Naylor agreeing during cross-examination that Drake had
informed him that Drake was preparing a site for a cabin). There was no testimony that the
Corps knew of any other development project by Drake, let alone an eighteen-lot development
project in 2008 or at any time. The Corps officials' testimony at the evidentiary hearing is
consistent with the submitted administrative record, which contains documents noting Drake's
preparation for a possible cabin or home on the north side of the inlet to Enemy Swim Lake.
E.g., RA 2958 (writing in phone notes from September 22,2008, that Drake was considering a
future residence north of the inlet); RA 3035 (noting possible residence in notes of phone
conversation from November 3, 2008); RA 3525 (noting possible residence in letter to Sen. John
Thune); RA 3589 (noting possible residence in internal conversation record); RA 3672 (noting
possible residence in internal email communication).
The Tribe also seeks to supplement the record with evidence that the Corps failed to
follow established tribal consultation policies. Tribal consultation is an important governmental
policy aimed at respecting tribal sovereignty and self-determination of tribal members in
government decision-making in a country whose development and governmental decision
making was often at the expense of tribal sovereignty and self-determination of tribal members.
See President Barack Obama, Tribal Consultation: Memorandum for the Heads of Executive
Departments and Agencies, 74 Fed. Reg. 57881 (Nov. 5,2009). The Tribe only cites one area of
the proposed supplements to the record that concerns a consultation responsibility with the Tribe,
Doc. 77 at 9 & n.18, where Corps employee Jim Oehlerking testifies about notes he made
regarding a conference call. The Corps' Native American Coordinator informed Oehlerking and
the others on the call that the Corps had "not been notified of [an] issue with [the] exempt
crossing by the Tribe and [we] have fulfilled our responsibility. If we [are] made aware of
concerns, then we should consult and coordinate." Doc. 57 at 46-48. The notes to which
Oehlerking referred during his testimony are in the administrative record. RA 3597-98. At this
point, that document and testimony already is part of this Court's record. To the extent that lack
of tribal consultation, "coaching," or NHPA violations are at issue, this Court will allow the
Tribe latitude to cite to and rely upon material it has placed in the CMlECF record including
from the evidentiary hearing. But supplementation of the record for purposes of the AP A review
of the Corps' decisions at issue dated May 1,2006, and May 4,2009, is not justified.
Motion to Reconsider Equitable Tolling
In this Court's first Opinion and Order regarding the partial motion to dismiss, this Court
ruled that running of the statute of limitations applicable in this case, 28 U.S.C. § 2401 (a), could
not be tolled for equitable reasons because that statute was jurisdictional in nature. Sisseton
Wahpeton Oyate of the Lake Traverse Reservation, 918 F. Supp. 2d at 967-68, 972. During the
pendency of this case, the Supreme Court of the United States in United States v. Kwai Fun
Wong, 135 S. Ct. 1625 (2015), held that the statute of limitations provision in a nearby statute,
§ 2401 (b), was not intended by Congress to be jurisdictional, and therefore equitable tolling
could suspend the running of that statute in appropriate factual circumstances. Id. at 1629. The
Tribe argues that under Federal Rule of Civil Procedure 54(b) this Court should reconsider its
decision regarding equitable tolling because of the intervening authority of Kwai Fun Wong.
Docs. 81, 85. The Corps opposes this motion. Doc. 84. Because this Court's judgment that
§ 240 I (a) is not subject to equitable tolling is not a manifest error of law, the motion to
reconsider is denied. Furthermore, even if the statute of limitations in § 2401 (a) were subject to
equitable tolling, the Tribe has not met its burden of showing that despite the Tribe's diligent
pursuit of its rights, some extraordinary circumstance prevented it from filing its dismissed
claims on time.
Motion to Reconsider Standard
A court has the authority to revise any order or decision that "adjudicates fewer than all
the claims" in an action presenting more than one claim for relief at "any time before the entry of
a judgment adjudicating all the claims ...." Fed. R. Civ. P. 54(b). A motion to reconsider,
when directed at an order that does not adjudicate all claims in a particular action, is treated as a
Rule 60 motion for relief from a judgment or order. Broadway v. Norris, 193 F.3d 987, 989 (8th
Cir. 1999). Though ultimately within a court's discretion, courts generally should limit granting
such motions to only when necessary to correct '''manifest errors of law or fact''' or to allow
presentation of '''newly discovered evidence.'" Bradley Timberland Res. v. Bradley Lumber
Co., 712 F.3d 401, 406-07 (8th Cir. 2013) (quoting United States v. Metro. S1. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006)). Rule 60 authorizes relief "based on certain enumerated
circumstances" and does not provide a means to simply "reargu[e] on the merits" a previously
decided issue. Broadway, 193 F.3d at 989-90.
In the Tribe's opposition to the motion to dismiss, relying primarily on the United States
Supreme Court decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), the
Tribe argued that this Court should apply a presumption that 28 U.S.C. § 2401(a) is subject to
equitable tolling. 4 Doc. 65 at 7-8. The Tribe now argues that this Court's determination that
§ 2401 (a) is jurisdiction is "no longer reconcilable with the intervening authority" of Kwai Fun
Wong. Doc. 81 at 2.
The Supreme Court's analysis in Kwai Fun Wong employed a straightforward
application of the rule announced in Irwin. See Kwai Fun Wong, 135 S. C1. at 1630-33. The
4In Irwin, the Supreme Court held that federal courts should apply the same rebuttable
presumption-that a statute of limitations is subject to the doctrine of equitable tolling-to
statutes of limitations that apply to actions against the United States government as it does to
statutes of limitations that apply to actions between private parties. Irwin, 498 U.S. at 95-96.
Court applied the rebuttable presumption that Congress intended the statute of limitations for tort
claims against the United States, 28 U.S.C. § 2401(b), to be subject to equitable tolling. Kwai
Fun Wong, 135 S. Ct. at 1630-31. However, the Court noted that a "rebuttable presumption, of
course, may be rebutted," and one way to do so "is to show that Congress made the time bar at
issue jurisdictional." Id. at 1631. The Court then reasoned that the text, statutory context, and
legislative history of § 2401 (b) did not express clear intent by Congress to make the provision
jurisdictional. Id. at 1631-33. After finding nothing to rebut the presumption ofthe applicability
of equitable tolling to § 2401(b), the Court stated: "And so we wind up back where we started,
with Irwin's 'general rule' that equitable tolling is available in suits against the Government."
Kwai Fun Wong, 135 S. Ct. at 1633 (quoting Irwin, 498 U.S. at 95). Because the decision in
Kwai Fun Wong did not alter the equitable tolling analysis articulated in Irwin, the Tribe's
motion to reconsider merely seeks to reargue the issue on the merits, unless the Kwai Fun Wong
holding is directly applicable to § 2401(a).
The Kwai Fun Wong decision is not directly applicable to § 2401(a). The Supreme Court
in Kwai Fun Wong analyzed § 2401(b), which was passed as part of the Federal Tort Claims Act
and applies only to tort claims against the United States. Kwai Fun Wong, 135 S. Ct. at 1629.
The provision in § 2401(a) was passed originally as part of the Tucker Act and applies to non
tort claims against the United States. Act of March 3,1887, Ch. 359 §§ 1-2,24 Stat. 505; see
also Reviser's Note, 28 U.S.C. § 2401 (1946 2d Supp.) (noting subsection (a) is the time limit for
bringing claims pursuant to 28 U.S.c. § 1346(a) and is a recodification of 28 U.S.C. § 41(20)
(1940) while subsection (b) recodifies 28 U.S.C. § 942 (1940». In short, the Congressional
intent with respect to the jurisdictional effects of § 2401(a) and § 2401(b) are not necessarily the
same, and the Kwai Fun Wong decision finding § 2401(b) subject to equitable tolling does not
foreclose the opposite conclusion with respect to § 2401(a).
The United States Court of Appeals for the Eighth Circuit has not directly addressed
whether § 2401(a) is subject to equitable doctrines tolling the statute of limitations. However,
two Eighth Circuit cases support this Court's conclusion that § 2401(a) is jurisdictional and
therefore not subject to equitable tolling. First, in Loudner v. United States, 108 F.3d 896 (8th
Cir. 1997), the Eighth Circuit reversed a district court decision dismissing a claim by a group of
people claiming the government owed them benefits as descendants of the Sisseton-Wahpeton
Sioux Tribe. Id. at 898. The district court had dismissed the case for lack of subject matter
jurisdiction after determining that the claim accrued outside § 2401(a)'s six-year statute of
While explaining the procedural background of the case, the court noted
parenthetically: "Filing within the applicable statute of limitations is treated as a condition
precedent to the government's waiver of sovereign immunity, and cases in which the government
has not waived its immunity are outside the subject-matter jurisdiction of the district courts." Id.
at 900. The Eighth Circuit in Loudner also noted in the context of § 2401(a):
The doctrine of sovereign immunity precludes suit against the United States
without the consent of Congress; the terms of its consent define the extent of the
court's jurisdiction. The applicable statute of limitations is a term of consent.
The plaintiffs failure to sue within the period of limitations is not simply a
waivable defense; it deprives the court ofjurisdiction to entertain the action.
Id. at 900 n.l (quoting Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th
Cir. 1990». Ultimately, the court in Loudner found that the cause of action accrued at a later
date than the date the district court had determined, which made timely the plaintiffs filing of
the claim. Id. at 902. Second, in Konecny v. United States, 388 F.2d 59 (8th Cir. 1967), the
Eighth Circuit affirmed dismissal for lack of subject matter jurisdiction of a claim against the
government brought under the Tucker Act because it was filed after the § 2401 (a) statute of
limitations had run. Id. 63-64. While the Eighth Circuit did not address the intent of Congress
in Konecny, its holding recognized the jurisdictional consequences of § 2401(a). Id. at 66 ("The
District Court's finding that Konecny's cause of action accrued prior to 1958 is not clearly
erroneous. In fact this finding appears to be inescapable on the Record, and the District Court,
therefore, lacked jurisdiction to consider the claim."). Both Loudner and Konecny support this
Court's conclusion that § 2401(a) is jurisdictional and therefore not subject to equitable tolling.
There is recent Eighth Circuit authority, however, that makes it difficult to be certain that
the Eighth Circuit precedent in Loudner and Konecny settles the issue in this circuit. The Eighth
Circuit in Andersen v. United States Department of Housing & Urban Development, 678 F.3d
626 (8th Cir. 2012), affirmed the dismissal of a claim against the government brought twenty
years after the cause of action accrued. Id. at 627. However, after determining that the action
was filed after the § 240 1(a) statute of limitations had run, the Eighth Circuit rejected the
plaintiffs equitable tolling argument because his claim was "at best a 'garden variety claim of
excusable neglect' that is not eligible for tolling." Id. at 629 (quoting Irwin, 498 U.S. at 96).
Although the Court quoted Irwin for the substantive standard of equitable tolling, it did not
address whether § 2401 (a) was jurisdictional. See id.
Other United States Courts of Appeals are split on the question of whether § 2401(a) is
subject to equitable tolling. Compare Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331,
1334 (11th Cir. 2006) (per curiam) ("Unlike an ordinary statute of limitations, § 2401(a) is a
jurisdictional condition attached to the government's waiver of sovereign immunity, and as such
must be strictly construed." (quoting Spannaus v. Dep't of Justice, 824 F.2d 52, 55 (D.C. Cir.
1977)), with Clymore v. United States, 217 F.3d 370, 373-74 (5th Cir. 2000) (finding § 2401(a)
subject to equitable tolling because it is a "garden variety" statute of limitations and allowing
equitable tolling would not create an "administrative nightmare"), Polanco v. U.S. Drug Enft
Admin., 158 F.3d 647,655 (2d Cir. 1998) (finding § 2401(a) subject to equitable tolling), and
Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997) (relying on Irwin to hold
that § 2401(a) may be subject to equitable tolling). No circuit court has undertaken an in-depth
look at the legislative history of § 2401(a).
That leaves this Court back where it started. This Court noted that that "neither equitable
estoppel [nor] equitable tolling apply to statutes of limitations that are jurisdictional in nature."
Doc. 32 at 17-18. Having earlier stated that "the statute of limitations [in § 2401 (a)] is a
jurisdictional limit," Doc. 32 at 8, this Court did not address the substance of the Tribe's
equitable tolling argument. Doc. 32 at 17-18. Because of the support for that finding in Eighth
Circuit precedent and the split in other circuits, that conclusion was not a "manifest error of law"
that justifies reconsideration. See Bradley Timberland Res., 712 F.3d at 406-07.
Equitable Tolling is not Justified Under these Circumstances
Even if this Court were to assume that equitable doctrines could toll the running
of § 2401 (a), the Tribe does not make a convincing argument that the statute of limitations
should be tolled in this case.
"Federal courts have typically extended equitable relief only
sparingly ...." Irwin, 498 U.S. at 96. While the Supreme Court has allowed equitable tolling in
situations where a plaintiff has "actively pursued his judicial remedies" but filed a defective
pleading within the statutory period or where a plaintiff has been "tricked by [an] adversary's
misconduct into allowing the filing deadline to pass," plaintiffs are not entitled to equitable
tolling when they have "failed to exercise due diligence in preserving" their legal rights. Id. A
plaintiff seeking equitable tolling must show that he or she "has been pursuing his [or her] rights
diligently, and ... that some extraordinary circumstance stood" in the way. Holland v. Florida,
560 U.S. 631, 649 (2010); see also Jenkins v. Mabus, 646 F.3d 1023, 1028 (8th Cir. 2011). The
Eighth Circuit has further clarified the distinction between equitable tolling and equitable
estoppel, another equitable doctrine that may toll the running of a statute of limitations. See
Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1995) (noting that equitable
tolling has occasionally been used as a blanket term that includes equitable estoppel but that
equitable tolling does not involve misconduct by the other party). When a plaintiff shows that
the defendant "actively prevent[ed]" the plaintiff from meeting the filing deadline, the doctrine
of equitable estoppel may apply. Jenkins, 646 F.3d at 1027-28. However, when '''despite all
due diligence, [a plaintiff] is unable to obtain vital information bearing on the existence of [the]
claim'" the doctrine of equitable tolling may pause the running of the statute of limitations.
Dring, 58 F.3d at 1328 (quoting Chakonas v. City of Chi., 42 F.3d 1132, 1135 (7th Cir. 1994)).
The Seventh Circuit in Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990),
distinguished between these equitable doctrines and the doctrine of discovery noting that the
equitable doctrines presume that "the plaintiff has discovered, or, as required by the discovery
rule, should have discovered, that the defendant injured him," and thus if the injury has not been
discovered, the doctrine of discovery-not equitable tolling or equitable estoppel-prevents the
statute of limitations from running. Id. at 451. Further, the difference between equitable tolling
and the doctrine of discovery is that, for equitable tolling, the plaintiff is aware of the injury (or
should be), but despite due diligence, a reasonable person in the plaintiff s position would not
have known the injury was possibly caused by a violation of the party's rights. Id.
A clear understanding of the distinctions between these statute of limitations doctrines
allows this Court to address the Tribe's many equitable tolling arguments. See Doc. 81 at 10-15
(restating sixteen arguments from previous filings). Many of the arguments allege activities that
happened prior to the date this Court has determined the cause of action accrued. See, e.g., Doc.
81 at 11-12 (arguing in arguments 3 and 7 that the Corps did not give public notice of its
determinations); Doc. 81 at 13 (arguing in argument 11 that the Tribe was not invited to a 2004
site visit in which South Dakota officials were invited to participate). Those arguments cannot
support tolling of the statute of limitations because the statute of limitations had not started
running for the 1998,2000, and 2003 Corps' determinations. Doc. 69 (finding the Tribe's cause
of action for claims relating to 1998, 2000, and 2003 determinations accrued on January 25,
Other arguments reargue this Court's decision about when the cause of action accrued for
purposes of the statute of limitations. See, e.g., Doc. 81 at 9-1 0 (arguing in argument 2 that the
Tribe did not and could not have known at the January 25, 2005 meeting that Drake would
engage in large scale excavation in 2008 and 2009); Doc. 81 at 11-12 (arguing in arguments 3
and 7 that the Corps never gave public notice of its determinations); Doc. 81 at 11 (arguing in
argument 4 that the Corps did not "proactively" contact the Tribe until 2009); Doc. 81 at 13
(arguing in argument 10 that the Corps did not provide the Tribe with records regarding Drake's
activity until 2009); Doc. 81 at 14 (arguing in argument 14 that the Tribe could not have known
that Drake would eventually make a development road). None of these alleged facts could have
kept the Tribe from "vital information bearing on the existence" of its claim; new information
about Drake's intentions after the determinations were made do not affect whether the
determinations were correct at the time they were made, and therefore could not bear on the
existence of a claim. The facts later learned by the Tribe might suggest that Drake may be
violating the CWA, but they cannot affect the legality of the determinations made by the Corps
1998, 2000, and 2003 because the facts were not before the Corps at the time of those
decisions. Moreover, as the facts set forth in this Court's previous opinions illustrate, the Tribe
was already concerned about Drake's activities prior to the January 25, 2005 meeting, and the
discussion at the meeting not only made the Tribe aware of the itljury (the challenged adverse
decisions), but the possibility that the Corps' decisions were wrong. Doc. 69 at 11-14. None of
the alleged events that happened after the January 25, 2005 meeting and before the filing of this
action prevented the Tribe, had it been diligently pursuing its rights, from filing a claim on time.
'"If a plaintiff were entitled to have all the time he needed to be certain his rights had been
violated, the statute of limitations would never run-for even after judgment, there is no
certainty." Cada, 920 F.2d at 451.
Finally, the Tribe argues that the Corps "asked the Tribe to exhaust administrative
remedies." Doc. 81 at 11. This is technically more akin to an equitable estoppel argument. See
Dring, 58 F.3d at 1328. However, the Tribe cites no evidentiary support for this allegation, and
there is none in the record.
Even if the Corps' alleged request could be interpreted as
misconduct, bare allegations of misconduct do not entitle a plaintiff to equitable tolling. See
Jenkins, 646 F.3d at 1028 (noting the burden of showing entitlement to equitable relief from a
statute of limitations is on the plaintiff). In short, the Tribe has not shown the extraordinary
circumstances necessary to entitle it to equitable relief from the statute of limitations barring the
claims based on the 1998,2000, and 2003 determinations. Therefore, even if § 2401(a) could be
subject to equitable tolling, the Tribe has not met its burden of showing that it pursued its claims
Therefore, it is hereby
ORDERED that the Tribe's Motion to Compel Production, Doc. 73, is denied to the
extent explained in this Opinion and Order. It is further
ORDERED that the Tribe's Motion to Supplement the Administrative Record, Doc. 77,
is granted only to the limited extent permitted in this Opinion and Order. It is further
ORDERED that the Tribe's Motion to Reconsider, Doc. 81, is denied.
l g"" day of August, 2015.
BY THE COURT:
ROBERTO A. LANG
UNITED STATES DISTRICT JUDGE
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