Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sisseton-Wahpeton Oyate of The Lake Traverse Reservation v. United States Corps of Engineers

United States Court of Appeals, Eighth Circuit

April 25, 2018

Sisseton-Wahpeton Oyate of the Lake Traverse Reservation; Dave Flute, Chairman Plaintiffs - Appellants
v.
United States Corps of Engineers; Colonel John W. Henderson, in his official capacity as District Commander; Steven E. Naylor, in his official capacity as Regulatory Program Manager Defendants - Appellees

          Submitted: October 19, 2017

          Appeal from United States District Court for the District of South Dakota - Pierre

          Before GRUENDER and BENTON, Circuit Judges, and TUNHEIM [1] , District Judge.

          TUNHEIM, DISTRICT JUDGE.

         Merlyn Drake owns real property adjacent to Enemy Swim Lake in South Dakota and has been in the process of building a road across his property since 1998. Drake purportedly uses this road for agricultural purposes. Because constructing his road requires dredging and filling portions of Enemy Swim Lake and its surrounding creeks and inlets, he applied for permits from the United States Army Corps of Engineers ("the Corps") under the Clean Water Act ("CWA"). Between 1998 and 2009, the Corps issued six permit and exemption determinations to Drake.

         But Drake is not the only property owner on Enemy Swim Lake. The majority of the lake's shoreline is owned by the Sisseton-Wahpeton Oyate Tribe (the "Tribe"). The lake is of significant historical and cultural value to the Tribe, and the Tribe fears that Drake's activities harm the lake. The Tribe asserts that Drake misrepresented his plans to the Corps and intends to develop the land rather than use it for agricultural purposes. In 2010, the Tribe sent the Corps a letter requesting that it recapture Drake's road project and order Drake to remove the entirety of his road. The Corps concluded that Drake was continuing to use his land for agricultural purposes and declined to intervene.

         The Tribe brought the present action, arguing that the Corps had violated the Administrative Procedure Act ("APA"), the CWA, and the National Historic Preservation Act ("NHPA") in issuing the permit and exemption determinations to Drake. With one exception, the District Court[2] dismissed the Tribe's claims. The Tribe appeals. We affirm.

         BACKGROUND

         I. THE CLEAN WATER ACT

         The CWA prohibits "the discharge of any pollutant, " including dredged or fill material. 33 U.S.C. §§ 1311(a), 1362(6); see also id. § 1344(a). Persons wishing to discharge dredged or fill material into navigable waters must obtain a permit from the Corps. Certain activities are exempted from the statutory permitting requirements. Relevant here, one exemption allows dredging "for the purpose of construction or maintenance of farm roads . . . where such roads are constructed and maintained, in accordance with best management practices." Id. § 1344(f)(1)(E). But the statutory exemptions are covered by a "recapture" provision. Under the recapture provision, an otherwise exempt discharge requires a permit if it brings "an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced." Id. § 1344(f)(2). In effect, an activity that would normally be exempt - such as the construction of a farm road - requires a permit under the CWA if it ceases to be used for the exempted purposes.

         For nonexempt activities, the Corps has the authority to issue individual permits and/or general permits for the discharge of dredged or fill material. Id. § 1344(a), (e). The Corps has created a system of general permits known as "nationwide permits" to "regulate with little, if any, delay or paperwork certain activities having minimal impacts." 33 C.F.R. § 330.1(b). Nationwide permits are subject to certain requirements. Notably, a project pursued pursuant to a nationwide permit must be a "single and complete project." Reissuance of Nationwide Permits, 72 Fed. Reg. 11, 092, 11, 192-11, 196 (Mar. 12, 2007). Nationwide Permit 14 authorizes linear transportation projects (such as roads) so long as the water crossing is in nontidal waters and does not cause the loss of greater than one-half acre of waters of the United States. Id. at 11, 182-11, 184.

         Additionally, nationwide permits are subject to the requirements of the NHPA. Reissuance of Nationwide Permits, 72 Fed. Reg. at 11, 192. Under the NHPA, a federal agency must "take into account the effect of [an] undertaking on any historic property" prior to the issuance of any license. 52 U.S.C. § 306108. The NHPA defines "undertaking" to include "a project, activity, or program . . . requiring a Federal permit, license, or approval." 54 U.S.C. § 300320(3). The Corps has adopted its own regulations implementing the NHPA for purposes of permitting under the CWA. 33 C.F.R. § 325 app. C.

         II. FACTUAL BACKGROUND

         A. Drake's Permit Applications

         Merlyn Drake owns real property, which he purportedly uses for agricultural activities, adjacent to Enemy Swim Lake. Since 1998, Drake has been in the process of building a road across his property. Between 1998 and 2009, Drake filed with the Corps six permit applications under the CWA to dredge and fill portions of Enemy Swim Lake in furtherance of building his road. On appeal, the Tribe challenges the Corps's responses to three of these permit applications: (1) the 2003 farm-road exemption determination; (2) the 2006 farm-road exemption determination; and (3) the 2009 nationwide-permit determination.

         In 1998, Drake applied for a permit to build a bridge over an inlet of the lake. The Corps treated Drake's project as an exempt farm road. Drake later abandoned the project.

         In 2000, Drake applied for a permit to fill the edge of Enemy Swim Lake to create a road bed to connect his house to an established road. The Corps issued Drake a nationwide-permit determination under then-Nationwide Permit 26. See Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits, 61 Fed. Reg. 65, 874, 65, 916 (Dec. 13, 1996) (permitting such discharge into headwaters or isolated waters if it does not cause the loss of more than three acres).

         In 2003, Drake applied for two permits to further fill the lake for additional road projects. First, Drake applied for a permit to build a road system "to unify residents to a single road complete with recorded easements." In response, the Corps issued Drake a nationwide-permit determination under Nationwide Permit 14. Second, Drake applied for a permit to build an access road across the inlet, wetland, and creek on the east side of Enemy Swim Lake to provide access to his land for cattle grazing. In response, the Corps issued Drake a farm-road exemption determination.

         In 2005, Drake applied for a permit to fill a creek that flows into Enemy Swim Lake in order to construct a bridge and continue access to his pasture. In May 2006, the Corps issued Drake another farm-road exemption determination.

         Finally, in 2008, Drake applied for a permit to build an access road "necessary to totally access [his] land." Drake initially represented to the Corps that he intended the road to be used for agricultural purposes. After further discussion with the Corps, Drake disclosed that he would potentially use the road to access a second residence that he intended to build. In May 2009, the Corps issued Drake a nationwide-permit determination under Nationwide Permit 14.

         B. The Tribe's Concerns

         Drake's permit applications have been fraught with public challenges from the Tribe and other neighbors. Following the 2003 nationwide-permit and farm-road exemption determinations, the Tribe became concerned about Drake's road projects. The Tribe owns eighty-eight percent of the shoreline of Enemy Swim Lake, which is of cultural, historical, and religious significance to the Tribe. In 1867, the Tribe's treaty with the United States government was partially negotiated on the shores of the lake. The lake is home to the Tribe's historic burial grounds. Its plants are used for ceremonial and medicinal purposes, and Tribe members fish on the lake. There can be no doubt that the Tribe has a significant interest in protecting the lake and the land surrounding it.

         In 2004, Alvah Quinn, the Tribe's Fish and Wildlife Director, received a phone call about Drake's plan to build a road. The Tribe became concerned that Drake's projects might interfere with the ability of its members to fish on the lake. Quinn called James Oehlerking, a member of the Corps, about the Tribe's concern, and further expressed concern that Drake would develop the land rather than use the road for agricultural purposes.

         Public concerns escalated, and eventually Senator Tim Johnson requested that the Corps hold a meeting to discuss concerns related to Drake's projects. The meeting was held on January 25, 2005. Quinn and Floyd DeCoteau, another member of the Tribe, attended. All four permit and exemption determinations issued by the Corps from 1998 to 2003 were discussed. According to the Corps, "[a]s a result of the meeting, the Corps agreed to review the regulatory actions to determine if they were appropriate or if [the Corps] should assert discretionary authority by modifying, suspending, or revoking the nationwide permits." After further review, the Corps concluded that it did not "believe any modification or revocation of the permits [was] required."

         In the years following the 2005 meeting, the Tribe discussed Drake's projects with the Corps on a number of occasions. On February 8, 2007, Quinn called the Corps to express concerns that Drake was leveling land for cabins rather than to build a farm road. In July 2009, the Tribe again met with the Corps to express its concern that Drake was not using his land for agricultural purposes. The Corps disagreed.

         The Tribe's complaints culminated in a March 2, 2010, letter sent to the Corps. The Tribe argued that Drake obtained the permit and exemption determinations through misrepresentations about his projects and was abusing the farm-road exemption. Seeking relief, the Tribe argued that Drake's roads fall within the CWA's recapture provision and that the Corps must (1) require Drake to remove the road, (2) require Drake to obtain a permit to continue construction of the road, and (3) impose civil penalties on Drake for his allegedly willful violations of the CWA. The Tribe also accused the Corps of failing to comply with the requirements of the NHPA.

         The Corps responded in an August 30, 2010, letter. With respect to its exemption determinations, the Corps stated that it believed, and continues to believe, that its decisions were supported by sufficient evidence that Drake was actually using his farm road for agricultural purposes. The Corps concluded that the exempted farm roads could not be recaptured because the roads continued to meet the requirements for the farm-road exemption. With respect to its nationwide-permit determinations, the Corps clarified that these projects were not exempt from regulation. However, according to the Corps, the roadways fit within the parameters of the nationwide permits and were each a single and complete project.

         III. Procedural History

         The Tribe brought this case on November 7, 2011. The Tribe asserted ten claims against the Corps under the APA, the CWA, and the NHPA arising out of the permit and exemption determinations issued to Drake:

1. The Corps's decision that Drake's road is an exempt farm road is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
2. The Corps's failure to correct its initial decisions that Drake's road is an exempt farm road is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
3. The Corps must regulate Drake's unfinished project under the CWA.
4. The Corps's determination that Drake's activities have not been recaptured is arbitrary, capricious, an abuse of discretion, or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.