The recapture provision of the CWA states:
Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing 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, shall be required to have a permit under this section.
33 U.S.C. § 1344(f)(2). The recapture provision operates automatically, bringing a formerly exempt project within the jurisdiction of the Corps as soon as it ceases to be exempt. The Tribe argues that because Drake no longer uses his road for agricultural purposes the road has been recaptured and, therefore, Drake needs a permit.

But agency action committed to “agency discretion by law” is not subject to judicial review. 5 U.S.C. § 701(a)(2). An agency decision refusing enforcement generally is unsuitable for judicial review. Heckler v. Chaney, 470 U.S. 821, 831 (1985). In Chaney, the U.S. Supreme Court stated:
[A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.
Id. The mere use of the word “shall” in a statute “does not preclude the exercise of prosecutorial discretion” by the agency. Dubois v. Thomas, 820 F.2d 943, 948 (8th Cir. 1987) (citing Inmates of Attica v. Rockefeller, 477 F.2d 375, 381 (2d Cir. 1973)).

The Corps has authority to investigate and impose sanctions on those who violate the CWA. 33 U.S.C. § 1319(a). But this authority is discretionary. Dubois, 820 F.2d at 950-51 (finding nonjusticiable a claim seeking to compel enforcement action against an alleged violator of the CWA). The Tribe’s 2009 letter to the Corps argued that Drake’s road comes within the recapture provision and requested that the Corps (1) require Mr. Drake to obtain a permit; (2) to remove the so-called ‘farm’ road; and (3) impose civil penalities on Mr. Drake for willful violations of the Clean Water Act. The 2009 letter is nothing more than a request for enforcement, which is a discretionary action left to the Corps. See Heckler, 470 U.S. at 831.

The Tribe frames its recapture claim as a challenge to the recapture decision itself. But the Tribe’s requested relief shows that the recapture claim is an attempt to force the Corps to enforce the CWA against Drake. The Tribe requested that the District Court order the Corps “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.” The relief sought is merely the consequence of enforcing the CWA against Drake, presuming the Corps was to find that Drake had in fact violated the CWA.

We therefore conclude that the recapture claim is a nonjusticiable enforcement action and affirm the District Court’s dismissal of this claim.

II. STATUTE OF LIMITATIONS

We must decide whether the District Court erred in concluding that the Tribe’s claims arising from the Corps’s permit and exemption determinations made from 1998 to 2003 are barred by the statute of limitations. On appeal, the Tribe argues that (1) 28 U.S.C. § 2401(a) is not a jurisdictional statute of limitations and (2) the Tribe is eligible for equitable tolling. We conclude that the Tribe is not eligible for equitable tolling in this case. In light of this conclusion, we need not address whether 28 U.S.C. § 2401(a) is a jurisdictional statute of limitations.

Under 28 U.S.C. § 2401(a), “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” A plaintiff’s claim accrues for purposes of 28 U.S.C. § 2401(a) when the plaintiff “either knew, or in the exercise of reasonable diligence should have known, that [he or she] had a claim.” Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 751, 759 (8th Cir. 2009) (quoting Loudner v. United States, 108 F.3d 896, 900 (8th Cir. 1997)).

In some cases, a plaintiff may escape the statute of limitations by establishing that he or she is eligible for equitable tolling. Equitable tolling allows for an extension of the prescribed limitations period “when the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his [or her] claim.” Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 238 (8th Cir. 1995) (quoting Chakonas v. City of Chicago, 42 F.3d 1132, 1135 (7th Cir. 1994)). But not every statute of limitations can be equitably tolled. While courts presume that a statute of limitations permits equitable tolling in suits against the United States, the presumption is rebuttable. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990). One way for the government to rebut the presumption is to show that Congress made the statute of limitations jurisdictional, as jurisdictional statutes of limitations cannot be equitably tolled. See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015). We need not decide whether 28 U.S.C. § 2401(a) permits equitable tolling because we conclude that, even if it does, the Tribe is not entitled to it in this case.4

We review the District Court’s denial of equitable tolling de novo but review the District Court’s underlying factual findings for clear error. English v. United States, 840 F.3d 957, 958 (8th Cir. 2016). A plaintiff is entitled to equitable tolling only if he or she shows “ ‘(1) that he [or she] has been pursuing his [or her] rights diligently, and (2) that some extraordinary circumstances stood in his [or her] way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A plaintiff need not be certain that his or her rights have been violated. “[I]f a plaintiff were entitled to have all the time he [or she] needed to be certain his [or her] rights had been violated, the statute of limitations would never run.” Dring, 58 F.3d at 1329 (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990)). A court therefore asks whether a reasonable person in the plaintiff’s situation would be expected to know about the violation of their legal rights. Id.

The District Court concluded that the Tribe did not diligently pursue its rights because the Tribe knew that the Corps had authorized Drake’s road and that their legal rights were affected by Drake’s project no later than January 25, 2005.

According to the testimony of Alvah Quinn, the Tribe first became concerned that Drake’s road may affect its ability to fish on Enemy Swim Lake in November 2004. At the time, Quinn was the Fish and Wildlife Director of the Tribe, charged with “manag[ing] [the Tribe’s] fish and wildlife resources.” On November 8, 2004, Quinn called James Oehlerking about the Tribe’s concerns. In his notes from the phone call, Oehlerking wrote that Quinn and the Tribe were concerned because they spear north of the crossing. In particular, Quinn testified that the Tribe was concerned that erosion would fill the mouth of the stream and eventually prevent fish from traveling up the stream. Oehlerking’s notes also state, “[Quinn] thinks Drake will get access and develop lots along the lake.” Quinn agreed that he “[d]efinitely” spoke with Oehlerking about concerns that Drake would develop the land rather than using it for agricultural purposes. At the time of the phone call, the Tribe knew that Drake’s project may interfere with its ability to fish on the lake and was suspicious that Drake intended to develop the land rather than use it for agricultural purposes.5

On January 25, 2005, the Corps held a public meeting to discuss the four permit and exemption determinations issued to Drake from 1998 to 2003. Testimony from the attendees of the meeting and a subsequent letter to Senator Tim Johnson confirm that all four permits and exemptions were discussed at the meeting. A news article published in the Watertown Public Opinion newspaper states that concerns about the effects of Drake’s project on fish hatcheries were discussed at the meeting.

The District Court’s conclusion that Quinn and DeCoteau attended the meeting as representatives of the Tribe is supported by evidence. Both Quinn and DeCoteau signed the sign-in sheet as “SWO-Realty,” indicating that they were attending the meeting in their representative capacities. At the time, Quinn was in charge of the Tribe’s Fish and Wildlife program and therefore knew the effects that Drake’s project would have on the Tribe’s ability to fish on the lake. Following the meeting, Quinn told a reporter that he would take his concerns back to the Tribal Council. The reporter quoted Quinn in the published article:
*10 Alvah Quinn, Sisseton-Wahpeton Tribal Wildlife Director said the Tribe is concerned about Drake’s latest road for environmental reasons. He said the road could negatively impact spawning fish and that the road culvert capacity is a concern, given the upstream drainage area. “We do have concerns about the fish in the stream,” he said after the session. “Somebody, whether it’s a state, federal, or county agency needs to step up and enforce the laws they have.”
Quinn agreed at the evidentiary hearing that these statements were accurate.

Despite any confusion that may exist about what did or did not occur at the meeting, the evidence supports the following: First, the Tribe was aware of Drake’s project, and that the Corps had issued four permit and exemption determinations in furtherance of this project, no later than January 25, 2005. Second, the Tribe knew Drake’s project may affect its ability to fish on the lake. Third, the Tribe was suspicious that Drake did not intend to use the land for agricultural purposes and would instead develop the land. Finally, Quinn – acting as a representative of the Tribe – expressed his belief that the Corps had a duty to “enforce the laws they have.” The District Court’s findings are well supported by the record and not clearly erroneous.

A reasonable person in the Tribe’s position would be expected to know that Drake’s road and the Corps’s permit and exemption determinations affected their legal rights to fish on Enemy Swim Lake. Dring, 58 F.3d at 1329. The District Court therefore did not err in concluding that the Tribe’s cause of action against the Corps accrued on January 25, 2005, when Quinn received sufficient information at the meeting to be aware of the permit and exemption decisions.

Nevertheless, the Tribe argues that its cause of action did not accrue until it became aware that Drake changed the use of his road from agricultural purposes to development purposes in 2008. We disagree. The Tribe was well aware by January 25, 2005, that Drake’s project (and therefore the Corps’s 2003 exemption determination) threatened its fishing rights. The damage to the Tribe’s fishing rights is a sufficient injury to bring a cause of action for purposes of seeking an injunction. As evidenced by Quinn’s call with Oehlerking, the Tribe was also suspicious – even if it was not certain – that Drake intended to develop his land. The Tribe would have learned through the course of discovery whether the Corps was aware that Drake intended to develop his land rather than build a farm road. The Tribe had an obligation to pursue its rights diligently once it realized that the 2003 exemption threatened its fishing rights. Holland, 560 U.S. at 649.

The Tribe has not presented any compelling evidence for us to conclude that it diligently pursued its rights after January 25, 2005. The Tribe was well aware of the consequences of the Corps’s permit and exemption determinations and failed to act. We therefore affirm the decision of the District Court that the Tribe is not eligible for equitable tolling.

III. THE “STACKING” CLAIM

We must decide whether the Corps violated its own regulations by granting the 2009 nationwide permit. The Tribe argues that the 2009 permit is not related to a “single and complete project” and, therefore, the Corps unlawfully “stacked” permit and exemption verifications. We disagree.

As a threshold matter, the Corps argues that we do not have jurisdiction to hear this issue because the District Court has remanded the 2009 permit determination for reconsideration under NHPA. The Corps argues that it could decide on remand that there is no way for Drake’s road to comply with NHPA and vacate the 2009 permit decision, thereby providing the Tribe with the relief it requests. We disagree. We have jurisdiction over “all final decisions of the district courts of the United States.” 28 U.S.C. § 1291 (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Giordano v. Roudebush, 565 F.2d 1015, 1017 (8th Cir. 1977) (quoting Pauls v. Sec’y of the Air Force, 457 F.2d 294, 297 (1st Cir. 1972)). The purpose of Section 1291 is to avoid piecemeal review. Id. at 1018.

Giordano is instructive on the application of Section 1291 in the context of administrative law. There, the district court determined that a plaintiff’s due process rights had been violated, remanded the case to the agency, and retained jurisdiction to consider the issue of back pay upon completion of administrative procedures. 565 F.2d at 1016-17. On appeal, this court concluded that the case did not meet the final-decision test because “the district court has only remanded the case for further administrative proceedings and thus its order is not a final judgment.” Id. at 1017. In so finding, this court stated that “the district court ... neither granted nor denied the ultimate relief of reinstatement and back pay sought by the plaintiff.” Id.

Giordano is distinguishable from this case. Here, the District Court denied all relief requested by the Tribe except with regard to whether the 2009 permit violated the NHPA, which was remanded for the Corps to determine. Unlike in Giordano, the District Court did not retain jurisdiction to hear the Tribe’s arbitrary-and-capricious claim related to the 2009 permit but rather explicitly denied the Tribe’s requested relief with respect to that claim. We therefore conclude that the District Court’s decision constitutes a reviewable final decision for purposes of Section 1291.

Turning to the merits, the Tribe claims that the Corps acted arbitrarily and capriciously by determining that Drake’s 2009 project qualified for a nationwide permit because the 2009 project was not a “single and complete project.” We apply the Auer (also known as Seminole Rock) standard in cases involving an agency’s interpretation of its own regulations. See Auer v. Robbins, 519 U.S. 452, 461-63 (1997). An agency’s interpretation of its own regulations is controlling unless “plainly erroneous or inconsistent with the regulation.” Id. at 461 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). We must defer to a permissible interpretation even if it is not the “best” interpretation. Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013).

To qualify for a nationwide permit, the activity must be a “single and complete project.” Reissuance of Nationwide Permits, 72 Fed. Reg. 11,092, 11,196 (Mar. 12, 2007). A particular nationwide permit “cannot be used more than once for the same single and complete project.” Id. “Single and complete project” means “the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers.” 33 C.F.R. § 330.2(i).

Nationwide Permit 14 authorizes “[a]ctivities required for the construction, expansion, modification, or improvement of linear transportation projects (e.g., roads ...) in waters of the United States.” Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,183. Generally, a “single and complete project” is defined by its “independent utility.” Id. at 11,197. But the Corps has adopted a different definition of “single and complete project” for linear transportation projects. “For linear projects, a ‘single and complete project’ is all crossings of a single water of the United States (i.e., a single waterbody) at a specific location. For linear projects crossing a single waterbody several times at separate and distant locations, each crossing is considered a single and complete project.” Id.; 33 C.F.R. § 330.2(i) (emphasis added). “However, individual channels in a braided stream or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not separate waterbodies, and crossings of such features cannot be considered separately.” Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,197. We conclude that this interpretation is neither plainly erroneous nor inconsistent with the regulation and, therefore, must defer to the Corps’s interpretation. Auer, 519 U.S. at 461.

Drake’s 2009 project was authorized pursuant to Nationwide Permit 14. We must therefore determine whether the record supports a finding that each project crosses Enemy Swim Lake “at separate and distant locations.” The Tribe argues that a cursory glance of the map shows that each project crosses a branch of an “irregularly shaped wetland or lake.” To the contrary, the lengths of road stemming from these permits and exemptions each cross a separate body of water. The road stemming from the 2003 exemption crosses a wetland adjacent to Enemy Swim Lake. The road stemming from the 2006 exemption crosses Enemy Swim Creek, which flows into Enemy Swim Lake. The road stemming from the 2009 nationwide permit crosses a separate wetland north of Enemy Swim Creek. While these waterbodies are all connected to Enemy Swim Lake, they are separate waterbodies rather than the arms of “a large, irregularly shaped wetland or lake.” By way of analogy, one would not say that the Mississippi River and the Everglades are the same body of water merely because they both join the Gulf of Mexico. Pursuant to the Corps’s interpretation of its own regulation, the 2009 nationwide permit constitutes a “single and complete project.” Id.

We therefore affirm the District Court’s dismissal of the Tribe’s arbitrary-and-capricious challenge to the Corps’s 2009 permit decision.

IV. NHPA CLAIMS

The Tribe asks this court to consider the lawfulness of the Corps’s regulations enacted pursuant to NHPA. The District Court remanded the 2009 permit and ordered the Corps to reconsider its validity under NHPA. The Tribe acknowledges that a remand order “may not be appealed immediately.” Izaak Walton, 558 F.3d at 762. The District Court neither made a final decision with respect to the NHPA claim nor granted or denied the Tribe relief with respect to that claim. Therefore, we do not have appellate jurisdiction to address the lawfulness of the Corps’s NHPA regulations. 28 U.S.C. § 1291.

* * *

First, because we conclude that the 2010 letter is not a final agency action, we affirm dismissal of claims stemming from this letter. Second, because we conclude that the Tribe’s recapture claim is a nonjusticiable enforcement action, we affirm dismissal of the Tribe’s recapture claim. Third, because we conclude that the Tribe is not entitled to equitable tolling, we affirm dismissal of the Tribe’s claims related to the 1998 exemption determination, the 2000 nationwide-permit determination, the 2003 exemption determination, and the 2003 nationwide-permit determination. Fourth, because we conclude that the Corps did not violate its own regulations in issuing the 2009 nationwide-permit determination, we affirm dismissal of the Tribe’s “stacking” claim. Fifth and finally, because the District Court remanded the Tribe’s NHPA claim to the Corps, we conclude that we do not have appellate jurisdiction over this issue.

Accordingly, we affirm the District Court.

All Citations
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