Case 3:11-cv-03026-RAL Document 16

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION, ROBERT SHEPHERD, CHAIRMAN, Plaintiff, v. 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, Defendants.

Civ. No. 11-3026-RAL

AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF

Introduction 1. The Sisseton-Wahpeton Oyate of the Lake Traverse Reservation and Robert Shepherd, its Chairman, in 2009 and 2010 challenged several United States Army Corps of Engineers decisions allowing unregulated fill of Enemy Swim Lake within the Lake Traverse Reservation in South Dakota, which violate the Clean Water Act. 2. The Enemy Swim Lake (Toka Nuwan Yapi) is of tremendous cultural and religious significance to the Sisseton-Wahpeton Oyate and is considered by many members to be a sacred place. The 1867 Treaty between the United States and the Tribe, 15 Stat. 505, which established the Lake Traverse Reservation, was partially negotiated on the Enemy Swim Lake. There are burial grounds on and near the lake, the lakes plants

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are used in ceremonies and for medicinal purposes, and members spear and catch fish for sustenance, which has continued for many generations. Today the vast majority of the lake shore is owned by the Sisseton-Wahpeton Oyate and/or its members. Parties 3. The Sisseton-Wahpeton Oyate of the Lake Traverse Reservation (the Tribe) is a federally-recognized Indian tribe and exercises inherent sovereign authority, which is recognized in various Treaties with the United States. 4. The United States Army Corps of Engineers is the United States agency primarily responsible for implementing the Clean Water Act. Mr. Ruch and Mr. Naylor are federal officials within the COE and have been responsible for the COEs decisions being challenged by the Tribe. Defendants will be collectively referred to as the COE. Jurisdiction 5. 6. This Court has jurisdiction under 5 U.S.C. 702 and 28 U.S.C. 1331 and 1337. Venue in this Court is proper under 28 U.S.C. 1391(e). Facts 7. Since 1998, the COE has reviewed at least six (6) separate applications submitted by Merlyn Drake (Drake) for various road projects involving fill of Enemy Swim Lake. One of these applications pertained to the construction of a road across Enemy Swim Lake, which includes Enemy Swim Lake, wetlands adjoining Enemy Swim Lake, a creek flowing into the lake, and a drainage basin from thousands of acres of land. For ease of reference, the lake, wetlands, and creek are collectively referred to as Enemy Swim Lake. Before and after maps of this area are attached as Exhibits A and B and

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have been previously provided to the COE when the Tribe was exhausting its administrative remedies in 2009 and 2010. 8. The COE has issued three (3) decision letters notifying Drake that the activities he proposed to conduct were activities exempt under the Clean Water Act because Drake was constructing a farm road, as well as three (3) nationwide permit verification letters for the remainder of Drakes road. Because no notice was provided to the Tribe and no public notice was ever issued by the COE, the Tribe cannot be certain, absent discovery, which portion of the road was authorized by exemption decisions or by nationwide permits. 9. All allegations to the COE record in this Complaint derive from the documents produced, for the first time, in 2009 by the COE in response to the Tribes Freedom of Information Act request. 10. Collectively, these three exemption decisions and 3 nationwide permits have resulted in an expansive road system through Enemy Swim Lake. 11. In addition to these applications, the COE is aware that Drake has undertaken other excavation and construction activities resulting in the discharge of dredged or fill material into the navigable waters of the United States, none which have ever been regulated by the COE. 12. The COE has never issued an Individual Permit under Section 404 of the Clean Water Act for any of the excavation, construction or development activities undertaken by Drake involving Enemy Swim Lake. 13. Based upon information provided by a former federal official who worked on the Drake application and file, the COE coached Drake on how he could submit his

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applications in such a way as to avoid the permitting process under Section 404 of the Clean Water Act. 14. Drakes road project is a huge undertaking involving a total of approximately one mile of road on Enemy Swim Lake or near its shoreline. 15. Drake did not hire a contractor, but constructed the road through Enemy Swim Lake himself, which took several years, and is still not complete. 16. The Tribe exhausted its administrative remedies in 2009 and 2010, but each and every request made by the Tribe was denied by the COE. 17. The Tribe recently provided the COE with pictures showing that Drake was working on the road as of August 18, 2011. 18. The COE regulates activities, not just applications. The 2003 Application & Exemption 19. Drakes November 18, 2003, Application for a Department of Army permit represents that the project title is access road to approx. 70 acres of pasture north of lake creek wetland, and goes on to explain that the name of the water body in question is Enemy Swim Lake northeast inlet area, and the reason for the proposed discharge is to raise an access road surface above the water surface, and the surface area would be approximately 30-40 feet wide for a length of approximately 500 feet. 20. Drakes November 18, 2003, Application also represents that his lakeshore property is surrounded entirely by the Sisseton-Wahpeton and/or BIA controlled land, and alleges that his lakeshore property on the north side of Enemy Swim and the sloughcreek inlet wetland can only be accessed by either boat or trespassing on tribal

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land, and that he could protect the lake by keeping his cattle away from the water by fencing off Enemy Swim Lake and the new road: With this proposal, I could fence off the wetland creek and lake in its entirety to prevent cattle from entering them and also allow for movement of cattle from one pasture to another without leaving my land, and also to access this area myself with equipment for fence construction and maintenance and cattle management. 21. Under threat of criminal penalty, Drake certified that the information he disclosed in the application was complete and accurate. 22. Drake declined the Tribes offer of an easement or right of way in order to access his lakeshore property on the north side. 23. The COE informed Drake on December 2, 2003, that his proposed project was exempt under 33 C.F.R. 323.4; 33 U.S.C. 1344(f). The COE interpreted Drake=s application as a culverted farm road@ that would Aprovide access for livestock and equipment. The road would travel across a wetland adjacent to Enemy Swim Lake. Attached to the COEs farm road exemption determination was a list of road exemption conditions, which attempt to set forth the baseline best management practices found in the COE=s regulations at 33 C.F.R. ' 323.4(a)(6). The December 2, 2003, preliminary decision was conditioned upon, among other things: (1) the design of the road not changing; (2) a change in the project; (3) complying with the Road Exemption Conditions or Best Management Practice; (4) complying with the COE regulations; and (5) complying with the Clean Water Act. The December 2, 2003, preliminary decision was not the COEs final decision on Drakes road. 24. The December 2, 2003, preliminary exemption decision issued by the COE did not disclose that the COE had already reviewed and approved a series of previous

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applications, which the COE has referred to as Assigned Action # 199830161, Assigned Action # 199930157, and Assigned Action # 200330441. 25. The COE knew, or should have known, that the prior landowner, Leo K. Fleischacker, never needed a road to cross Enemy Swim Lake because Mr. Fleischacker utilized a texas crossing a submerged gravel road that permitted easy access for Mr. Fleischacker. 26. Mr. Fleischackers submerged crossing is still being utilized by Drake today to access his lakeshore property and to conduct his excavation, construction, and development activities. 27. 28. 29. Unlike Mr. Fleischacker, Drake is not a farmer. The COE knew, or should have known, that Drake is not a farmer. During a site visit in 2009, Drake informed the COE and Tribal officials that the road through Enemy Swim Lake is not complete. 30. 31. Drake is still working on the road. The project proposed in the 2003 application with the COE remains incomplete because, among other things, Drake has not fenced off either Enemy Swim Lake or his new road in order to ensure that the cattle use the new road when crossing Enemy Swim Lake. 32. The COE has yet to modify its December 2, 2003, exemption decision, as required by the Clean Water Act and the COEs regulations. The 2006 Application & Exemption 33. In 2006, the COE preliminarily determined that Drakes proposed bridge across Enemy Swim Lakes primary inlet tributary was similarly exempt as a farm road.

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34. 35. 36. 37. 38. 39.

The bridge is currently incomplete. Drake has recently placed decking on the bridge. The bridge has yet to be utilized. The bridge is made of steel I-beams. The bridge is wide enough for a two lane road. There may be additional COE decisions, or preliminary decisions, exempting certain activities of Drake from complying with the Clean Water Act and COE regulations, however, the Tribe has never been notified of such exemptions. The same is true for the COEs nationwide permits issued to Drake. Drakes activities do not qualify for the farming road exemption

40.

The land underlying Drakes excavation, construction, and development was not subject to a local zoning ordinance when the COE made each of its decisions.

41.

During a site visit in 2009, Drake informed the COE that he was like a big kid in a sand box when operating 10 or more pieces of heavy equipment and transferring thousands of cubic yards of rock, dirt, sand, and vegetation in and around Enemy Swim Lake.

42.

The physical evidence of several years of construction and excavating activity by 10 or more pieces of heavy equipment whether from a grader, backhoe, bulldozer, excavator, or loader is entirely inconsistent with farming or grazing.

43.

On May 20, 2009, Drake informed the COE that he had (2) 690 excavators, 1 caterpillar, 550 John Deere Crawlerloader, older pay loader and a 4-W drive tractor operating on his lakeshore property.

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44.

The COE observed that grazing or agricultural uses were not possible during the many years of Drakes excavation and construction.

45.

The COE informed Senator John Thune that Mr. Drake has conducted site grading for a potential future residence on the northern part of his land that is accessed by the crossing. Mr. Drake has been informed that any upgrade to the road to serve his new residence that impacts water of the United States will not qualify for an agricultural exemption and that a permit will be required.

46.

Drake informed the COE on September 22, 2008, that he wants to make x-ing to west, for future house of (his) own.

47.

The COE is aware that Drake already built a residence elsewhere on Enemy Swim Lake because in approximately the year 2000 the COE exempted Drakes proposal to construct an access road on the Drake farm from established road to house site being built.

48.

In 2009, the COE stated to the press that I dont think theres any question the road is being used for things other than ag-related activity.

49. 50.

In 2009, the COE informed the Tribe that Drake is conducting land-leveling activity. Drakes land-leveling activity was cited by the COE in 2009 in order to reject jurisdiction because Drakes activity was allegedly on land.

51.

The COE failed to cite to Drakes land-leveling activity when determining whether such land-leveling activity was consistent with any agricultural use.

52.

The COE knew, or should have known, that the land-leveling activity was occurring on Drakes shoreline with fill running off into the lake.

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53.

In 2009 when the COE met with the Tribe, in its Tribal Council chambers in Agency Village, South Dakota, the COE acknowledged that we recognize that the equipment and the land clearing that he is doing is not typical agricultural use.

54.

During the same meeting, the COE informed the Tribe that [t]he fact that he has heavy excavating equipment out there gives an appearance that its not agricultural.

55.

The COE has been informed that the United States Department of Agriculture does not possess any files pertaining to a grazing plan for Drakes lakeshore property at Enemy Swim Lake

56.

The COE was informed in 2004 by the Day County Conservation Office that Drakes intent was to develop the north side of his property.

57.

The COE has informed the Tribe that Drake has leased the north side of the inlet/lake/wetland to a local farmer, but each of Drakes neighbors have filed sworn statements with the COE that cattle have not been present on the north side, nor has there been any agricultural use.

58.

In recent years, since approximately 2008, the COE denied Drake a farming road exemption for an extension of the same road on or near Enemy Swim Lake.

59. 60.

The COE no longer believes that Drake will utilize this road for farm purposes. The COE issued Drake a nationwide permit, as opposed to an exemption, because the proposed road on the north side of Enemy Swim Lake was not a farm road.

61.

Under the COE reasoning, the portion of Drakes road crossing Enemy Swim Lake is for farm purposes and the portion of Drakes road after it crosses Enemy Swim Lake is not for farm purposes. This distinction is arbitrary and capricious.

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62.

During the 2009 site visit, Drake repeatedly informed the COE that his excavation and construction activities on Enemy Swim Lake were not for agricultural purposes, but for the recreational purpose of conserving his shoreline.

63.

The COE never questioned whether denuding thousands of feet of shoreline and stripping the land of its vegetation, soil, and all original natural condition could be classified as conservation.

64. 65.

This type of excavation and construction activity is not agriculture. As early as 1998 Drake publicly represented that he will develop his land on the north side of the lake inlet/wetland.

66.

By refusing to ever issue any public notice, the COE negligently and intentionally refused to consider valuable information pertaining to Drakes intentions, past activities, and future development plans.

67.

Drakes neighbors Leigh Adkins, Tom Adkins, Don Block, Lowell Christensen, Dennis P. Daly, Don Daly, Gary Gange, Kimberly Gange, David MacNally, Steve Paradis, Marilyn Rundberg, Elizabeth Schreiber, Anita & Keith Sharf, Royce Sharf, and Jerry Myers -- provided sworn statements in 2010 to the COE that they have never witnessed a single cow, nor evidence of cattle, on the north side of the inlet/lake/wetland.

68.

These neighbors all informed the COE of their universal opinion that Drake has not engaged in any grazing or agricultural use and that such use has been impossible for several years due to Drakes excavation and construction activities.

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69.

The Tribe has provided the COE with the same information when exhausting its administrative remedies with the COE in 2009 and 2010 and seeking a final decision from the COE.

70.

The Tribe has also provided the COE with hundreds of photographs and three videos from 2005 to 2010 depicting a large scale excavation and construction project wholly inconsistent with any conceivable notion of grazing or agricultural use. The Tribe obtained these photographs in 2009.

71.

The COE has been informed by the Tribe, which was documented by videos, photographs, and affidavits that Drake spent nearly every summer day for several years moving earth into Enemy Swim Lake and on the Enemy Swim Lake shoreline with his heavy equipment.

72.

The COE has been informed by the Tribe, which was documented by videos, photographs, and affidavits, that Drake had so many pieces of heavy equipment that he kept a large fuel tank truck on site.

73.

The COE first met with the Tribe on July 31, 2009, during a site visit to discuss the Tribes concerns.

74.

During the site visit and a same day meeting with the Tribal Council at the Tribes headquarters, the COE acknowledged Drakes tremendous and unusual economic investment to construct a road across Enemy Swim Lake.

75.

In 2009 the COE also provided the Tribe with a copy of a document titled Background Information Concerning the Work at an Inlet of Enemy Swim Lake, South Dakota and concluded that Drake is no longer using his road for agricultural purposes.

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76.

Several certified public records since 2002 were provided to the COE and demonstrate that Drake has several mortgages attached to the land at issue worth approximately $1,625,000.00.

77.

The COE understands that ten or so acres on the north side of the lake/inlet/wetland are not worth $1.625 million dollars as agricultural grazing land, but could be justified only if Drakes excavation and construction activities support lake shore development.

78.

The COE was informed by the Tribe in 2010 that Drakes $1.625 debt on the land north of the lake/inlet/wetland does not include the mortgage on Drakes new lake home south of the lake/inlet/wetland, which has two recorded mortgages in 2007 and 2008 totaling an additional $396,000.00.

79.

The COE was informed by the Tribe in 2010 that on June 4, 2009, Drake wrote a letter to the South Dakota Department of Environment and Natural Resources (DENR) and represented that the purpose of the whole project was to stabilize an existing condition and reverse the excessive natural erosion that has been going on for years.

80.

The COE was informed by the Tribe in 2010 that in the June 4, 2009, correspondence Drake acknowledged that his excavation and construction activities will result in fill going directly into the Enemy Swim Lake: I am working on it and until the silty clay bank reaches at least a 4:1 slope and black dirt reapplied, it will continue to be a very vulnerable situation. But please remember the original intent. The lake doesnt know the difference of how the clay silt gets there. This is a case where there is probably a little pain to achieve a long term cure.

81.

The COE was informed by the Tribe in 2010 that on May 20, 2009, Drake was notified by the DENR that he was violating the conditions of his South Dakota permit. The DENR found that erosion was occurring on the site and several areas where sediment discharges went into Enemy Swim Lake. 12

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82.

The COE was informed by the Tribe in 2010 that even on the date of its inspection, the DENR observed sediment actively leaving the site and being deposited on the shoreline and into the waters of Enemy Swim Lake.

83.

The COE was informed by the Tribe in 2010 that the DENR inspection report repeatedly indicates, Drakes permit was for construction activities.

84.

The COE was aware that Drakes activities resulted in significant accidental fill being placed into Enemy Swim Lake on a routine basis.

85.

The COE was informed by the Tribe in 2010 that according to the U.S. Natural Resources Conservation Services comprehensive publication the National Range and Pasture Handbook Drakes activities run counter to farm or grazing purposes.

86.

The COE was informed by the Tribe in 2010 that, likewise, Drakes activities violate the NCRSs guidance for conservation planning on grazing lands.

87.

The COE was informed by the Tribe in 2010 that Drakes activities do not comply with the National Resources Conservation Services Engineering Field Handbook specifically Chapter 16, Streambank and Shoreline Protection.

88. 89.

Drake has not provided the COE with any designs. The COE was informed by the Tribe in 2010 that Drake has not implemented a fenced buffer zone between the grazing land and the lake.

90.

The COE was informed by the Tribe in 2010 that Drake has not used any typical protective measures, such as groins, bulkheads, riprap or concrete revetments, vegetative measures, patching, the several types of soil bioengineering systems, or the coconut fiber roll.

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91.

The COE was informed by the Tribe in 2010 that Drakes activities do not constitute shoreline conservation. Environmental Damage

92.

Drakes unregulated discharge of fill material, massive excavation and denuding of approximately 2000 feet of shoreline and Drakes construction of the road in Enemy Swim Lake has resulted in environmental harm to Enemy Swim Lake.

93.

The COE was informed by the Tribe in 2010 that a lymnologist, Professor David R. German of South Dakota State University, has conducted fifteen years of water quality testing on Enemy Swim Lake.

94.

The COE was informed by the Tribe in 2010 that in August of 2009, Professor Germans testing revealed, for the first time ever, a dead zone of water near Drakes excavation.

95.

The COE was informed by the Tribe in 2010 that in 2009, the water near Drakes excavation was considered hypoxic, which generally refers to an oxygen level so low that it will not support fish and other aquatic animals.

96.

The COE was informed by the Tribe in 2010 that Professor German is of the opinion that the dead zone in the lake was caused by the excavation and construction occurring on the Drake property, which includes the road through the wetland and the denuding and stripping of approximately 2,000 feet of shoreline, both of which cover dozens of acres.

97.

The COE was informed by the Tribe in 2010 that Professor German also noticed yellow clayey sediment material mixed with sandy sediments and filling the spaces between small cobbles immediately off shore of the Drake property, which was not

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present in this area when I collected plants and invertebrates in the same area in 2005 and 2006. 98. The COE was made aware by the Tribe in 2009 and 2010 that Drakes (1) discharge of fill material, (2) from a point source, (3) into the waters of the United States, and (4) without a permit. The COE has a prima facie case of a Clean Water Act violation. 99. Based upon information and belief, the COE possessed information and evidence that Drake violated the Clean Water Act and the COE regulations well before 2009 and 2010. 100. The Tribe immediately informed the COE that Drakes road is not a farm road, exhausted its administrative remedies with the COE, and sought a final decision from the COE in 2009 and 2010. Drakes activities have been recaptured under the Clean Water Act 101. Drake informed the COE in his application that he was constructing a farm road through Enemy Swim Lake, including the need to fence the entire area so cattle would use the road. 102. The Tribe was present in 2009 when Drake later informed the COE that he built the road and later denuded the shoreline for the purpose of conservation. 103. The COE has stated that Drakes activities do not constitute typical conservation efforts. 104. All of Drakes neighbors, and even the COE itself, have acknowledged that his activities are related to excavation and construction.

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105. Drake initially claimed to be constructing a farm road, but Drake later informed the COE, and the DENR, that the road is in fact utilized by heavy equipment to access Drakes construction activities of excavating and denuding the shoreline. 106. Drakes fill of Enemy Swim Lake was for the purpose of bringing an area of the waters into a use to which it was not previously subject, which is development, excavation, construction, recreation, and/or conservation. 107. Drakes road impairs the flow or circulation of Enemy Swim Lake. 108. The reach of Enemy Swim Lake has been reduced by Drakes road. 109. Drakes neighbors and the Tribe informed the COE that Drakes road impairs the flow or circulation of the lake/inlet/wetland and the reach of the lake/inlet/wetland has been reduced by Drakes road. 110. The Tribe was first aware that Drakes activities have been recaptured under the Clean Water Act in 2009. 111. The Tribe immediately informed the COE that Drakes activities were recaptured. It exhausted its administrative remedies with the COE, and sought a final decision from the COE in 2009 and 2010. Best Management Practices 112. Drakes construction and maintenance of a so-called farm road must comply with the COEs Best Management Practices (BMP) in order to be exempt from the permit requirement. 113. The COE never provided notice to the public about Drakes projects. 114. The COE did not consider any alternatives.

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115. The COE did not conduct an environmental assessment or environmental impact statement under the National Environmental Protection Act (NEPA) for any of Drakes activities. 116. Drakes road was not held to the minimum feasible number because it is approximately 18 to 20 feet in width at the top and approximately 30 feet wide at the bottom. 117. The COE was informed by the Tribe in 2010 that the road meets the South Dakota Department of Transportations guidelines for a public road. The stated purpose of the road is for cattle crossing and construction and maintenance of fencing and a single lane road would have been sufficient for these stated purposes. 118. The COE was informed by the Tribe in 2009 and 2010 that the road carries heavy construction equipment, but no cattle as the application represented. 119. Drakes road is not located sufficiently far from streams or other water bodies . . . to minimize discharges of dredged or fill material into waters of the United States. 120. The road could have been located outside of the ordinary high water mark to minimize the discharge of fill material into the lake, inlet, and wetland. 121. Instead, the road touches the lake and the stream, which was not necessary. 122. Drakes road is not adequately bridged, culverted, or otherwise designed to prevent the restriction of expected flood flows. 123. There are too few culverts. 124. None of the culverts permit navigability. 125. During the flood flows each culvert has the effect of confusing the fish attempting to swim upstream by simulating a stream affect.

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126. Drakes road has never been properly stabilized and maintained during and following construction to prevent erosion. 127. A May 20, 2009, storm water inspection report issued by the South Dakota Department of Environment and Natural Resources found significant erosion. 128. Drakes road does not ensure that vegetative disturbance in the waters of the U.S. is kept to a minimum. 129. Drakes disturbance of several acres of vegetation in the lake and wetland could have been avoided by placing the road outside the ordinary high water mark. 130. Drakes road was required to be designed, constructed and maintained to not disrupt the migration or other movement of those species of aquatic life inhabiting the water body, but failed to do so. 131. As stated by the South Dakota Game, Fish and Parks opinion on June 17, 2005, Drakes road will certainly have a negative impact on the biological functions of this wetland and will negatively impact the Enemy Swim fisheries resource. 132. Drakes road fails to avoid the discharge of fill into breeding and nesting areas for migratory waterfowl, spawning areas, and wetlands. 133. On June 17, 2005, the South Dakota Game, Fish and Parks informed the COE that the road could have been placed outside the ordinary high water mark, which would have avoided placing this road in nesting areas, spawning areas, and wetlands. 134. The Tribe was first aware that Drakes activities violated the Best Management Practices and other conditions imposed by the Clean Water Act and COE regulations in 2009.

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135. The Tribe immediately informed the COE that the road does not comply with the Best Management Practices and other conditions imposed by the Clean Water Act and the COE regulations, exhausted its administrative remedies with the COE, and sought a final decision from the COE in 2009 and 2010. During a July of 2009 Site Visit The COE Witnessed Unregulated Fill of A Spring Feeding Enemy Swim Lake 136. The COE witnessed Drakes unregulated fill of an entire ravine and its spring. 137. The COE was made aware that Drake effectively admits the presence of the spring because he attempted to install a 5 inch plastic, flexible tube for the water to run from his property, under the Tribes property, and into Enemy Swim Lake. 138. The COE inspected this fill, including the 5 inch plastic, flexible tube, but declined to cooperate with the Tribe in investigating these facts or regulating the fill of the waters of the United States. 139. The COE inspected this unregulated fill after determining that Drakes activities were not agricultural. 140. The Tribe was first aware in 2009 that Drakes activities included the unregulated fill of this spring in violation of the Clean Water Act and COE regulations. 141. The Tribe immediately informed the COE of the unregulated discharge of fill into the spring, exhausted its administrative remedies with the COE, and sought a final decision from the COE in 2009 and 2010. Stacking 142. The COE violated the Clean Water Act by allowing Drake to stack at least three exemption decisions and at least three nationwide permits together in order to construct a road by piecemeal. Because the COE never notified the Tribe or the public 19

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of any of its decisions pertaining to Drake, it is possible that the COEs stacking involves more or less than six permits and exemption decisions. 143. The road is approximately one mile long and has not been used for agricultural or grazing purposes. 144. The COE informed the South Dakota Attorney Generals office on November 8, 2004, that we have three permit actions with Drake, consisting of construction of a road across a small wetland, site grading in the edge of a wetland on lakeside lots, and construction of a road across a wetland/drainage/inlet to Enemy Swim Lake. 145. On November 4, 2005, Drake informed the COE that the road + bridge is a continuation of my efforts to connect my farm land and pasture to allow for cattle movement and grazing and also for myself to access the area for fence construction and maintenance and farm management. 146. Drakes application to construct the still-incomplete bridge informs the COE that the purpose of the bridge project was to access lot 5 from lot 2 . . . of which that access was gained from permit application no. 2000330442. 147. When reviewing the Bridge application, the COE verified that Drake was also going to construct a road to and from the bridge with culverts in three separate locations, which were 2 feet in diameter. 148. Drake most recently represented in his October 2, 2008, Application For Department Of The Army Permit that the road to be constructed was for an access road, which would constitute final completion of the entire project. 149. The COE was informed by Drake on October 30, 2008, that he intends to be ag. for now is extension of previous ag. exempt crossings.

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150. The COE knew, or should have known, that each of these projects and others did not have independent utility. The COE has allowed Drake to stack permits in violation of the Clean Water Act and the COE nationwide permit rules. 151. The Tribe was first aware that Drake and the COE stacked various permits and/or exemption decisions in violation of the Clean Water Act and COE regulations in 2009. 152. The Tribe immediately informed the COE that the stacking of various permits and/or exemption decisions violated the Clean Water Act and COE regulations, exhausted its administrative remedies with the COE, and sought a final decision from the COE in 2009 and 2010. The COE has not complied with the National Historic Preservation Act 153. The COE violated the National Historic Preservation Act (NHPA) by not notifying the State Historic Preservation Office (SHPO) or the Tribal Historic Preservation Office (THPO) of any of the undertakings approved, reviewed or exempted by the COE. 154. The COE violated the NHPA by not treating its exemption decisions as an undertaking. 155. The COE violated the NHPA by not treating its issuance of nationwide permits as an undertaking. 156. These COE positions, among others, have been deemed by the federal Advisory Council on Historic Preservation to be inconsistent with the NHPA. 157. The COE issued a Nationwide Permit authorizing Drake to install two culverts on the north side of the lake/inlet/wetland, which entailed the stripping and denuding of the shoreline.

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158. The Nationwide Permit violated the NHPA because it left it up to Drake to determine if any historical properties were present on the construction site: The permittee and/or the permittees contractor, or any of the employees, subcontractors or other persons working in the performance of a contract(s) to complete the work authorized herein, shall cease work and report the discovery of any previously unknown historic or archeological remains to the South Dakota Regulatory Office. Notification shall be by telephone or fax within 24 hours of the discovery and in writing within 48 hours. Work shall not resume until the permitee is notified by the South Dakota Regulatory Office. 159. Despite numerous jurisdictional determinations from the COE that Drakes activities involved waters of the United States and were either exempt under the Clean Water Act or were subject to a nationwide permit, the Tribes Historic Preservation Office has never been contacted by the COE to notify them of Drakes undertakings. 160. The SHPO likewise was not notified of these undertakings. 161. The SHPO and/or the Tribes THPO should have been notified of these undertakings. 162. The Tribe believes that historical properties are present. 163. At a minimum, an archeological survey should have been completed. 164. The Tribe was first aware that Drakes activities violated the National Historic Preservation Act and the regulations issued pursuant to the NHPA in 2009. 165. The Tribe immediately informed the COE that Drakes activities violated the National Historic Preservation Act and associated regulations, exhausted its administrative remedies with the COE, and sought a final decision from the COE in 2009 and 2010. Fraud/Intentional Violation of the Clean Water Act 166. Former COE and EPA official, Rex Fletcher, has knowledge that Mr. Drake was coached by the COE into submitting his permit application in such a way as to avoid the 404 Permit review process. 22

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167. Mr. Fletcher has worked on the Drake file while employed with the EPA and has submitted numerous written filings with the COE, which allege that the COE has violated the Clean Water Act and COE regulations. 168. The COE violated the Clean Water Act by coaching Drake how to avoid or circumvent the requirements of the Clean Water Act. 169. The Tribe was first aware that the COE unlawfully coached Drake in 2009. 170. The Tribe immediately informed the COE of this information and exhausted its administrative remedies with the COE and sought a final decision from the COE in 2009 and 2010. The Tribes exhaustion of its administrative remedies in 2009 and 2010 171. All of the allegations in this Complaint, as well as additional evidence, documents, and records, were made in writing by the Tribe to the COE in 2009 and 2010. 172. The Tribe specifically requested the COE to issue a final decision on these allegations. 173. The COE issued a final decision on August 30, 2010, which denied all of the Tribes arguments. Count 1 COEs Decision That The Drake Road Project Is Exempt As a Farm Road Under 33 U.S.C. 1344 Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law 174. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 175. The COE failed to adequately investigate Drakes total lack of any farming activity on the north side of Enemy Swim Lake prior to the time the COE reviewed Drakes application. 176. The COE failed to review Drakes status as a retired mechanic who lives in a prestigious lake home. 23

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177. An official for South Dakota informed the COE on November 8, 2004, that Drakes intent is to develop the north side of the lake shore. 178. An official for the United States Environmental Protection Agency reviewed the Drake application and informed the COE that the project could not be exempt under the farm road exemption because it was obvious that Drake had other intentions for the lakeshore. 179. The Tribes Office of Environmental Protection and the Tribes Historic Preservation Office informed the COE that Drakes road was not a farm road. 180. The COE was repeatedly informed by members of the public, including the Tribe, that Drakes activities were not agricultural. 181. The COE has admitted that Drakes road across Enemy Swim Lake is not a farm road. 182. The COE subsequently determined that an additional link to Drakes road across Enemy Swim Lake was not a farm road and was not within the exemption provided by 33 U.S.C. 1344(f). 183. The COE regulates activities, not just applications. 184. The Tribe was first informed about the COEs preliminary 2003 exemption decision in 2009. 185. This portion of Drakes road is still incomplete, as is the entire road. 186. The COEs preliminary decision that Drakes road across the Enemy Swim Lake was exempt because the discharge of fill material was for the purpose of constructing a farm road is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, and the Clean Water Act.

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187. The COEs final decision in 2010 that Drakes road across the Enemy Swim Lake was exempt because the discharge of fill material was for the purpose of constructing a farm road is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, and the Clean Water Act and COE regulations. Count 2 The COEs Failure To Correct Its Initial Exemption Decisions That The Drake Road Projects Is Exempt As A Farm Road Under 33 U.S.C. 1344 Are Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law 188. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 189. When issuing a final decision to the Tribe in 2010, the COE informed the Tribe that the COE regulates activities and not applications. 190. Because the COE was informed by the Tribe in 2009 and 2010 that the discharge of fill in the waters of the United States is not from Drakes activity of constructing or maintaining a farm road the COEs final decision in 2010, including but not limited to its failure to correct, modify or reverse its preliminary decision, that Drakes road across the Enemy Swim Lake was exempt because the discharge of fill material was for the purpose of constructing a farm road is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, and the Clean Water Act and COE regulations. Count 3 The COE Must Immediately Regulate Drakes Unfinished Project Under The Clean Water Act 191. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 192. The activities proposed by Drake in his applications with the COE have not been completed.

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193. Drake has not fenced off Enemy Swim Lake or his new road in order to ensure that the hypothetical cattle use the new road when crossing Enemy Swim Lake as provided in his applications. 194. Drake informed the COE and the Tribe during a 2009 site visit that the road was not yet complete. 195. Drakes bridge is not complete. 196. Drake began installing the decking on the bridge in August of 2011. 197. The approaches to the bridge are not complete. 198. The bridge cannot be utilized. 199. Additional work on the road or bridge should have required a permit from the COE in accordance with section 404 the Clean Water Act and COE regulations. 200. Additional work on the road or bridge should be prohibited by the Court in order to ensure that this project complies with the Clean Water Act and COE regulations. 201. The COEs final decision in 2010 that no additional regulation of Drakes activities is required is arbitrary, capricious, an abuse of discretion, an unlawful failure to act, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, and the Clean Water Act and COE regulations. Count 4 The COE Determination that Drakes Activities Have Not Been Recaptured Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law 202. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 203. Drakes discharge of dredged or fill material into the waters of the United States brought an area of the Enemy Swim Lake into a use which it was not previously subject. 26

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204. The COE has acknowledged that Drakes activities and purposes are not farming related. 205. Drakes activities impair the flow and/or circulation of waters of the United States. 206. Drakes activities reduce the reach of the waters of the United States. 207. The COE has acknowledged that Drakes road is placed in the heart of the inlet/wetland/creek of Enemy Swim Lake. 208. Drakes discharge of fill into Enemy Swim Lake satisfies the recapture requirements established by 33 U.S.C. 1344(f)(2) and requires a permit. 209. The COEs final decision in 2010 that Drakes activities have not been recaptured under the Clean Water Act and the COE regulations is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, the Clean Water Act, and COE regulations. Count 5 The COE Determination that Drakes Road Complies With Its Best Management Practices Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law 210. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 211. Drakes road violates the best management practices required by federal law and maintained by the COE at 33 C.F.R. 323.4(a)(6)(i), (ii), (iii), (iv), (v), (vi), (vii), and (x). 212. Because Drakes road violates the best management practices, a permit was required. 213. The COEs final decision in 2010 that Drakes road does not violate any of the best management practices is arbitrary, capricious, an abuse of discretion, or otherwise not

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in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, the Clean Water Act, and COE regulations. Count 6 The COE Determination That Drakes Fill Of A Spring Feeding Enemy Swim Lake Need Not Be Regulated Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law 214. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 215. The COE has been informed and has witnessed Drakes fill of a small spring feeding Enemy Swim Lake. 216. The small spring was excavated and filled by Drake. 217. Drake put a small, underground, plastic pipe in the place of the spring. 218. The COEs final decision in 2010 that Drakes fill of this spring need not be regulated is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, and the Clean Water Act and COE regulations. Count 7 The COE Determination To Permit Drake To Stack Permit Applications, Exemptions, and Nationwide Permits Is Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law 219. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 220. Drake submitted at least six separate applications for a single road project with the COE. 221. The COE erred by treating each of these applications and projects as independent projects that are not dependent on each other for functionality. 222. These projects and the road are all located within an approximate one mile radius and involve the same road system. 28

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223. The COE failed to comply with the Clean Water Act and its own nationwide permitting system by allowing Drake to stack applications, exemption decisions, and nationwide permits. 224. The COEs final decision in 2010 to treat each application or project as a single, complete project that is not dependent on each other for functionality is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, the Clean Water Act, and COE regulations. Count 8 The COE Violated the National Historic Preservation Act 225. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 226. The COE violated the NHPA by determining that each of Drakes applications and projects, which it approved as exempt from the Clean Water Act or subject to a nationwide permit, were not federal undertakings subject to the NHPA. 227. The COE violated the NHPA by determining that for each of Drakes applications and projects, which it approved under its nationwide permitting rules, Drake could voluntarily report the presence of any historical resources or other properties subject to the NHPA. 228. The COE violated the NHPA by failing to treat some or all of Drakes applications and projects as an undertaking subject to the section 106 process. 229. The COE violated the NHPA by failing to notify the SHPO or THPO. 230. The COEs final decision in 2010 that its decisions, exemptions, and nationwide permits did not constitute an undertaking under the NHPA is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the

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Administrative Procedure Act, 5 U.S.C. 701-706, and the National Historic Preservation Act and the NHPA regulations. Count 9 The COE Failed To Mitigate 231. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 232. The COEs decisions have resulted in the loss of several acres of wetlands, lake, streams and riparian areas. 233. The COE violated the CWA by failing to require Drake to mitigate the loss of these wetlands, streams, and riparian areas when granting several separate Nationwide Permits. 234. The COEs final decision in 2010 to not require any mitigation from the loss of wetlands, streams, and riparian areas is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. 701-706, the Clean Water Act, and COE regulations. Count 10 COE Intentional Violation of the Clean Water Act 235. The Tribe repeats and re-alleges the allegations in the preceding numbered paragraphs. 236. The COE coached Drake how to avoid the requirements of the Clean Water Act. 237. A retired COE and EPA official, Rex Fletcher, has filed his claims with the COE that he was informed by current COE and EPA officials that Drake was coached by COE officials on how to avoid the Clean Water Act, specifically its permit process, which includes the farm road exemption and the nationwide permits. 238. Mr. Fletcher worked on this project while with the EPA and easily determined that Drakes project was not exempt.

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239. While with the EPA, Mr. Fletcher contacted the COE to urge application of the permitting process, but was ignored. 240. Mr. Fletcher asked his superiors at the EPA to take over regulation of the Drake project, but the EPA declined due to a lack of time and resources. 241. During Mr. Fletchers review of the Drake project he obtained information from other federal officials and colleagues that the COE coached Drake on how to avoid the Clean Water Act. 242. The Tribe requested Mr. Fletcher to disclose the names of those COE and EPA officials who informed him of the improper coaching to get around the Clean Water Act, however, Mr. Fletcher is retired and fears retribution from the federal government, which could affect his retirement benefits. For this reason Mr. Fletcher would not disclose these names to the Tribe. 243. The Tribe also requested Mr. Fletcher to disclose the names of those COE officials who coached Drake, but for the same reasons in the preceding paragraph Mr. Fletcher fears retribution if he would disclose any of these names. 244. Mr. Fletcher has filed an affidavit with the COE, but it purposefully leaves out this specific information pertaining to coaching. 245. Mr. Fletchers sworn statement constitutes a strong showing of bad faith and improper behavior. 246. The Court should order further discovery and evidentiary supplementation pertaining to these allegations of the COE coaching Drake on how to avoid the Clean Water Act. 247. The Court should also issue a protective order for Mr. Fletchers benefit in order to protect him while he discloses this information to the Court.

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Prayer for Relief Therefore, Plaintiff, the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation prays for judgment against Defendant as follows: 1. Declaring that: A. The COEs preliminary decisions to issue farm road exemptions to Drake were arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the Administrative Procedure Act and the Clean Water Act and COE regulations. B. The COEs failure in 2009 and 2010 to correct its preliminary farm road exemption decisions is arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the Administrative Procedure Act and the Clean Water Act and COE regulations. C. The COEs final decision in 2010 to treat Drakes activities as exempt under the Clean Water Act was arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the Administrative Procedure Act and the Clean Water Act and COE regulations. D. The COEs 2010 determination that Drakes activities have not been recaptured under the Clean Water Act is arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the Administrative Procedure Act, the Clean Water Act, and COE regulations. E. The COEs 2010 determination that Drakes road complies with the Clean Water Acts best management practices is arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the Administrative Procedure Act, the Clean Water Act, and COE regulations. F. The COEs 2010 determination that Drakes fill of a spring feeding Enemy Swim Lake need not be regulated is arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted 32

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by the facts, in violation of the Administrative Procedure Act, the Clean Water Act, and COE regulations. G. The COEs 2010 determination to allow Drake to stack permit applications, and to stack COE exemption decisions and Nationwide Permits was arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the Administrative Procedure Act, the Clean Water Act, and COE regulations. H. The COE violated the NHPA by allowing Drake to voluntarily report the presence of any historical resources, by failing to treat Drakes application and projects as an undertaking subject to the Section 106 process, and by failing to notify the SHPO or THPO. I. The COEs 2010 decision to not require mitigation for any of Drakes project was arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority, and limitations, without observance of procedure required by law, unsupported by substantial evidence and unwarranted by the facts, in violation of the Administrative Procedure Act, the Clean Water Act, and COE regulations. J. The COE intentionally violated the CWA by coaching Drake on how to avoid the requirements of the CWA. 2. After hearing, preliminarily enjoining, and after full hearing, permanently enjoining COE and all others acting in concert with the COE from carrying on or permitting any activities in furtherance of the construction of the project or road. 3. Ordering the COE to require Drake to remove the entire road, bridge, and other portions of the project to bring the entire area back to its original condition. 4. Retaining jurisdiction of this action to ensure compliance with the Courts orders. 5. Awarding Plaintiffs costs, including attorneys fees as authorized by the Equal Access to Justice Act or other federal law, and other expenses of litigation. 6. Awarding such other relief as the Court deems just and proper.

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Respectfully submitted, Dated: February 03, 2012 /s/ Debra Flute Debra Flute Sisseton-Wahpeton Oyate Legal Department P.O. Box 509, Veterans Memorial Drive Agency Village, South Dakota 57262 DebraF@SWO-NSN.GOV Telephone: (605) 698-3911, extension 208 Facsimile: (605) 698-7844 South Dakota Bar No. 3491

Greg S. Paulson Kurt V. BlueDog Pro hac vice motion pending Bluedog, Paulson & Small, P.L.L.P. 5001 American Boulevard West Suite 500 Southgate Office Plaza Bloomington, Minnesota 55437 kbd@bpslawfirm.com Telephone: (952) 893-1813 Facsimile: (952) 893-0650

Of Counsel: Richard A. Duncan Faegre & Benson 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 rduncan@faegre.com Telephone: (612) 766-7000 Facsimile: (612) 766-1600

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