Sisseton-Wahpeton Oyate of the Lake Traverse Reservation; Dave Flute, Chairman Plaintiffs - Appellants
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
from United States District Court for the District of South
Dakota - Pierre
GRUENDER and BENTON, Circuit Judges, and TUNHEIM  , District
TUNHEIM, DISTRICT JUDGE.
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.
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.
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 dismissed the Tribe's claims. The
Tribe appeals. We affirm.
THE CLEAN WATER ACT
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.
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.
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
Drake's Permit Applications
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
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.
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
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
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.
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.
The Tribe's Concerns
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.
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.
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]
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.
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.
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.
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 ...