Sisseton-Wahpeton Oyate Reservation v. U.S. Corps of Eng'rs
| Decision Date | 18 September 2014 |
| Docket Number | CIV 11-3026 -RAL |
| Parties | SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION and ROBERT SHEPHERD, Chairman, Plaintiffs, v. 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. |
| Court | U.S. District Court — District of South Dakota |
Plaintiffs Sisseton-Wahpeton Oyate of the Lake Traverse Reservation (the Tribe) and Robert Shepherd (Shepherd), the Tribe's chairman, 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 J. Ruch, in his official capacity as District Commander. Plaintiffs' Complaint challenges the Corps' granting of certain § 404 exemptions and Nationwide Permits 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 of the 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 of the 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 of the 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.
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 unlessthe complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a); see Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 751, 758-59 (8th Cir. 2009) ().
A claim against a governmental agency first accrues "on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action." Izaak Walton, 558 F.3d 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 § 2401(a), "a claim accrues 'when the plaintiff either knew, or in the exercise of reasonable diligence should have known, that [he or she] had a claim.'" Andersen v. U.S. Dep't of Hous. & Urban Dev., 678 F.3d 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 of limitations in an Administrative Procedure Act case is a jurisdictional limitation, "the plaintiff will have the burden of proof that jurisdiction does in fact exist." Qsborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (citation omitted); Runs After v. United States, No. CIV 10-3019-RAL, 2012 WL 2951556, at *6 (D.S.D. July 19, 2012).
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, 2005meeting. The Corps had not furnished the Tribe or any of its representatives with any of the 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.
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 CF.R. Part 323.4." Defendant's Ex. A. The Corps placed conditions on the project, cautioned Drake about the needto 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 of Enemy 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 of an access road associated with a three-tenths of an acre wetland fill for residential lot development. Defendant's Ex. B. That wetland fill and road was to the south of the 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 of a 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 of the 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 betweenand 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 of much of the evidentiary hearings, as this is the road that cuts through the wetlands just to the south of Enemy 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 CF.R. Part 323.4. Defendant's Ex. C; Doc. 45 at 182-83. Farm roads generally are...
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