888 F.3d 906
8th Cir.2018Background
- Merlyn Drake built a road across land adjacent to Enemy Swim Lake (1998–2009), obtaining multiple Corps CWA verifications: farm-road exemptions and nationwide-permit determinations.
- The Sisseton‑Wahpeton Oyate Tribe owns most of the lake shoreline, uses the lake for cultural/ceremonial purposes, and asserted Drake misrepresented his intent (development vs. agriculture).
- The Tribe repeatedly protested to the Corps (meetings in 2005, calls in 2004 and 2007, meeting in 2009) and sent a March 2010 letter asking the Corps to recapture the exemptions, require removal of the road, and impose penalties.
- The Corps responded in August 2010, affirming its earlier exemption/permit decisions and declining enforcement action; the Tribe sued (2011) under the APA, CWA, and NHPA.
- The district court dismissed most claims on grounds including finality/timeliness, non‑justiciability of enforcement decisions, and lack of entitlement to equitable tolling; it remanded only the NHPA issue as to the 2009 nationwide permit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Corps' Aug. 30, 2010 letter was a final agency action for challenging prior permit/exemption determinations | The 2010 letter consummated and finalized earlier decisions, so the Tribe’s challenges are timely against that final action | The underlying verification letters issued earlier were the final agency actions; the 2010 letter merely restated earlier positions and caused no new legal consequences | 2010 letter is not a final agency action; earlier verification letters were final when issued (Tribe’s attempt to reset the limitations clock fails) |
| Whether the recapture claim (forcing Corps to treat project as no longer exempt) is justiciable | Corps lawfully misapplied recapture and the Corps must be ordered to enforce the CWA against Drake | Corps has prosecutorial/enforcement discretion; decisions not to enforce are committed to agency discretion and not reviewable | Recapture claim is a nonjusticiable enforcement action; dismissal affirmed |
| Whether Tribe’s challenges to 1998–2003 permits were time‑barred and whether equitable tolling applies | Tribe argued accrual occurred later (e.g., 2008) and equitable tolling should apply (or §2401(a) is nonjurisdictional following Kwai Fun Wong) | Tribe knew or should have known by Jan. 25, 2005; no extraordinary circumstances justify tolling; even if §2401(a) tollable, Tribe not entitled to equitable tolling | Claims arising from permits discussed by Jan. 25, 2005 are time‑barred; Tribe not entitled to equitable tolling; those counts affirmed dismissed |
| Whether the Corps unlawfully "stacked" exemptions/permits (2009 Nationwide Permit 14 not a single and complete project) | Drake’s multiple verifications made the 2009 Nationwide Permit part of a larger phased project and thus not a single and complete project | Corps’ interpretation treats separate crossings of the same waterbody at separate/distant locations as separate single-and-complete projects; Corps’ linear-project rule allows phased separate crossings | Court defers to Corps’ interpretation (Auer); the 2009 permit qualified as a single and complete project; stacking claim dismissed |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (agency action is final only when it marks consummation of decisionmaking and determines rights/obligations)
- Heckler v. Chaney, 470 U.S. 821 (agency refusal to enforce is presumptively unreviewable prosecutorial discretion)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretations of its own regulations unless plainly erroneous)
- Hawkes Co. v. U.S. Army Corps of Eng’rs, 782 F.3d 994 (8th Cir. 2015) (agency letters may be final if they inflict legal consequences; used here to analyze finality)
- Irwin v. Department of Veterans Affairs, 498 U.S. 89 (presumption that statutes of limitations are subject to equitable tolling absent contrary congressional intent)
- Dubois v. Thomas, 820 F.2d 943 (8th Cir. 1987) (discretionary enforcement under CWA not judicially compellable)