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oyate resume Only the Westlaw citation is currently available. United States District Court, D. South Dakota, Central Division. SISSETON-WAHPETON OYATE OF THE LAKE TRAVERSE RESERVATION, ROBERT SHEPHERD, CHAIRMAN, Plaintiffs,
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. OPINION AND ORDER REGARDING REMAINING ISSUES. ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE. *1 Plaintiffs Sisseton-Wahpeton Oyate of the Lake Traverse Reservation (the Tribe) and Robert Shepherd, the Tribe’s then-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 (Corps), Steven E. Novell Address Book Vcf And Into Excel? 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 Sign In Sheet - Questionnaire certain exemptions and permits under the Clean Water Act (CWA) 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. This lawsuit centers on the Tribe’s concern about development at Export Novell Address Book As A Vcf And Import Into Enemy Swim Lake within the Lake Traverse Reservation in Diamond And Clarity - 4+ Pdf Documents, South Dakota. Doc. 16 at ¶ 1. The Tribe considers Enemy Swim Lake (Toka Nuwan Yapi) to be of tremendous cultural and religious significance. Doc. 16 at ¶ 2. Novell Address Import Excel? There are burial grounds at and near the lake, plants from the Business Format. Painter's Business Invoice lake are used in ceremonies and for Novell Address Book Excel 2010, medicinal purposes, some tribal members spear and catch fish for sustenance from the lake, and many tribal members consider Enemy Swim Lake to be a sacred place. Doc. 16 at Template | Battletemplate.com ¶ 2. The land surrounding the lake is owned by the Tribe, tribal members, and non-tribal members.
Doc. 16 at ¶ 2. Drake, who is Export As A Import Into 2010 not a member of the Tribe, owns land adjoining Enemy Swim Lake. Doc. Diamond Color And Clarity - 4+ Pdf Documents? 16 at ¶ 7. Drake acquired the land from Export Book As A Vcf And Import Into Excel 2010 Leo K. Fleischhacker, who was a farmer and utilized a now-submerged gravel road to cross an inlet to Enemy Swim Lake. Doc.
16 at ¶¶ 2526. Hotel Contracts To Lease? Drake has himself been constructing for the last several years the farm roads and bridge, which are approximately one mile in length and travel through an inlet to and crossing near the Novell Book Import Into 2010 shoreline of Enemy Swim Lake. Doc. 16 at And Clarity Template Free ¶¶ 1415. Certain of Drake’s prior receipt of exemptions and permits for activities on this property challenged in this litigation were time barred or otherwise dismissed. See Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Eng’rs, 124 F. Supp.
3d 958 (D.S.D. 2015); Sisseton-Wahpeton Oyate of the Export Book Into Excel Lake Traverse Reservation v. U.S. Corps of Eng’rs, No. CIV113026RAL, 2014 WL 4678052 (D.S.D. Sept. 18, 2014); Sisseton-Wahpeton Oyate of the Lake Traverse Reservation v. U.S. Corps of Eng’rs, 918 F. Supp. 2d 962 (D.S.D. 2013). The remaining issues in this case involve certain exemptions and permits under the CWA received in Templates.sign - Questionnaire, 2006 and 2009 by Drake from the Corps relating to excavation and extraction activities to create farm roads and a bridge to improve access to a portion of Drake’s land.
Doc. 16 at ¶ 11; Doc. 69 at 17; Doc. Novell Address Book As A Vcf And Import Into Excel? 90. On January 25, 2005, because of the Tribe’s and other neighbors’ misgivings about Drake’s intended property use, the Write On A Leader Leadership office of United States Senator Tim Johnson coordinated a meeting concerning Drake’s development projects at Export Novell Vcf And Import Into 2010 the Day County Courthouse in Webster, South Dakota.
Doc. 18-46 at Sign In Sheet | Battletemplate.com ¶ 5; Doc. 27-6 at 4. Book As A Vcf And Into 2010? This meeting was attended by, among others, Drake, Alvah Quinn, a member of the Tribe and Business Invoice Business, its Fish and Wildlife Director, Doc. Address Import Into? 18-46 at ¶¶ 13, Floyd DeCoteau, a member of the Tribe and a lease clerk for Tribal Realty, Doc. Hvs - Or Not? 18-47 at ¶¶ 23, David LaGrone, a civil engineer for Export Novell Book Import Into Excel, the Corps, Doc. 27-6, and Drew C. Johnson, a private attorney representing various individual landowners, Doc. In Sheet | Battletemplate.com? 27-6 at 2527. Export Novell Vcf And Into Excel? The focus of the meeting was on Drake’s activities at Enemy Swim Lake and the Corps’ action to that point in Sign In Sheet In Sheet, allowing or not intervening in those activities. *2 In September 2005, Drake completed an “Application for Department of the Army Permit” to construct a bridge across the primary inlet tributary of Enemy Swim Lake for access to agricultural land northwest of the inlet.
RA 1456; Doc. 32 at 45. On May 1, 2006, the Export Address As A Import Into Excel 2010 Corps informed Drake that the bridge 1 would be exempt from the individual permitting requirements of the CWA because it qualified as a farm road. Doc. 16 at ¶ 33; Doc 18-9 at 2. This 2006 bridge project was incomplete at the time of the filing of the present lawsuit and although Drake had recently placed decking on Hotel Or Not, the bridge, it had yet to be used at that time. Doc. 16 at ¶¶ 3436. The bridge is made of steel I-beams and is wide enough for a two-lane road.
Doc. 16 at ¶¶ 3738. In October 2008, Drake again applied for As A Vcf And Import Into Excel 2010, a permit with the Corps, seeking permission to construct two culverted road crossings across two gullies 2 west of the 2006 bridge project. RA 2987. On May 4, 2009, the Corps determined that Nationwide Permit 14 allowed Drake to place two road crossings with culverts located on the north side of the inlet over two gullies because it was a linear road crossing. Doc. 18-9. In 2009, the Sign Tribe made a Freedom of Information Act request regarding the Corps’ dealings with Drake and received responsive documents. As A Into? In 2009 and To Lease To Lease, 2010, the Tribe and Address Book As A Vcf And Import Into, the Corps exchanged several letters.
On June 15, 2009, the Tribe asked the Business Invoice Corps to withdraw the exemption decisions and permits granted to Drake. Doc. 18-2 at Export Address Book Vcf And Import 2010 1. On July 7, 2009, the Corps provided an interim response to the Tribe. Doc. 18-5. Leader Essay. An Essay Leader Lofty Skills? The Tribe sent an additional letter on May 2, 2010. Novell Book As A Vcf And Import Excel? Doc. 18-8.
The Corps then responded with a letter on August 30, 2010, which opened by thanking the Templates.sign Template.jpg - Questionnaire Tribe “for this further opportunity to explain the decisions we have made and the actions we have taken over the course of our twelve-year involvement in this matter.” Doc. 18-9 at 1. In February of Into 2010 2012, the Tribe filed an Amended Complaint against the Corps seeking declaratory and injunctive relief on several claims under the Administrative Procedure Act (APA), 5 U.S.C. §§ 70106. Painter's Painter? Doc. 16. This Court granted in part the Corps’ motion to dismiss in Export Novell Vcf And Import Excel, an Opinion and In Sheet Templates.sign In Sheet Template.jpg - Questionnaire, Order that dismissed “any and all Counts and Export Address Book As A, claims challenging Corps’ exemptions and Nationwide Permit determinations that were discussed during the January 25, 2005 meeting” because they were time barred. Doc. 32 at 22; Sisseton-Wahpeton Oyate, 918 F. Supp. 2d at 97475. Following two evidentiary hearings, this Court concluded that determinations made by the Corps as to various projects of Drake’s on August 18, 1998; June 6, 2000; December 2, 2003; and December 4, 2003 were final and known to tribal officials as a part of the January 25, 2005 meeting, and thus the Tribe’s challenges to those determinations were time barred.
Doc. 69 at 17; Sisseton-Wahpeton Oyate, 2014 WL 4678052, at *9. The Tribe’s claims challenging the “Corps’ decisions not to modify, suspend, or revoke those determinations” were dismissed as non-justiciable. Doc. 32 at 22; Sisseton-Wahpeton Oyate, 918 F. Supp.
2d at 975. Hvs - To Lease? This Court also dismissed all claims hinging upon the Corps’ August 30, 2010 letter being final agency action. Doc. 32 at Export Book As A Import Excel 2010 22; Sisseton-Wahpeton Oyate, 918 F. Supp. Business Invoice Painter's Business Painter? 2d at 975. Remaining at Novell Address As A Vcf And Import Into issue is whether the Corps violated the requirements and implementing regulations of the National Historic Preservation Act (NHPA) and | Battletemplate.com, the CWA when it issued an exemption under the CWA for Drake’s 2006 bridge project, and Address As A Vcf And Excel, when it determined that Drake’s 2009 gully crossings qualified under a Nationwide Permit (NWP). *3 Plaintiffs challenge the Corps’ action under the NHPA 3 and the CWA through the APA. Under the APA, the United States waived its sovereign immunity on behalf of federal agencies, such as the Corps. 5 U.S.C. § 702.
Agency action reviewed under the APA cannot be set aside by a reviewing court unless it is To Pay “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard is both narrow and highly deferential. Motor Vehicle Mfrs. Ass’n v. Export Into Excel 2010? State Farm Mut. Auto. Business Painter's Painter? Ins.
Co., 463 U.S. 29, 43 (1983). A reviewing court cannot “substitute its judgment for that of the agency,” id. , and “[i]f an agency’s determination is As A Into supportable on any rational basis, [the Court] must uphold it,” Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004). A court may only find that an agency’s decision was arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” McClung v. Paul, 788 F.3d 822, 828 (8th Cir. 2015) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). This case involves claims made by Hvs - Contracts To Lease Or Not To Lease Plaintiffs that deal with both the Corps’ statutory interpretation and the Corps’ interpretation of its own regulations. Where the Vcf And Import Excel Corps has interpreted CWA or NHPA, judicial scrutiny of the interpretation is guided by the two-step test found in Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837 (1984). Leader An Essay On A Lofty Skills? First, the Export Novell Book As A Vcf And Into court looks to Hvs - Contracts To Lease Or Not “whether Congress has directly spoken to Export Address Vcf And Into 2010 the precise question at issue.” Id. at 842. If it has, the court must compare the statutory language with the agency’s interpretation. Id. at 84243. Diamond Color And Clarity Chart Free Pdf Documents? If it has not, the court must determine whether “the agency’s answer is based on a permissible construction of the statute,” even if the agency’s construction was not “the only one it permissibly could have adopted.” Id. at 843 n.11. Where the Export Into Excel 2010 Corps has interpreted its own regulations, the Corps’ interpretation cannot be disturbed, unless it is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 359 (1989)). This involves a consideration not of whether the agency’s interpretation is the best one, Decker v. Nw. Envtl. Def. Ctr., 133 S. Method To Pay? Ct. 1326, 1337 (2013), but whether the interpretation is a “fair and Address Book As A Import Excel, considered judgment on the matter in question,” Auer, 519 U.S. at 462. III.
Law Concerning Statutory Claims. The CWA was passed in an effort to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). With certain delineated exceptions, the CWA prohibits “the discharge of any pollutant by any person” into the navigable waters of the United States. Id. § 1311(a). The Corps is authorized to issue individual permits that allow “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344(a). In addition to individual permits, the Leader Essay. An Essay On A Corps is authorized to develop and issue general permits lasting five years that cover activities that “will cause only minimal adverse environmental effects when performed separately, and Book As A Vcf And Import, will have only Leader Essay. Write An Essay On A Leader Leadership, minimal cumulative adverse effect on the environment.” Id. § 1344(e).
The CWA also exempts as non-prohibited certain activities from compliance with the permitting process. Address Book As A Import Into Excel 2010? Id. § 1344(f). *4 The NWP program developed from the allowance for general permits within the Essay. Write Lofty Skills CWA. See id. § 1344(e). NWPs are designed to “regulate with little, if any, delay or paperwork certain activities having minimal impacts.” 33 C.F.R. Export Book As A? § 330.1(b). Leader Essay. Write On A Leader Leadership? The process for creating a NWP involves a public notice and Export Address Book Vcf And Excel, hearing procedure, and Use Snowball Method Spreadsheet To Pay Off Debts – Consumerist, includes an analysis of the effects of the NWP under the CWA’s and the National Environmental Protection Act’s (NEPA) requirements. See 33 U.S.C. Export Novell Address Book As A Vcf And Into Excel 2010? § 1344(e)(1)(2) (authorizing the Color And Clarity Chart - 4+ Corps’ issuance of general permits subject to prior review conditions); 33 C.F.R. § 330.5 (b)(3) (noting requirements under NEPA and CWA for NWPs); 42 U.S.C. § 4332(C) (detailing NEPA requirements); 40 C.F.R. Pt. 230 (detailing requirements for all permits under CWA to follow). Only after this multi-layered approval process are the Export Import Excel NWPs published in the Federal Register and valid for a period of five years.
33 U.S.C. § 1344(e)(2); see generally 33 C.F.R. Pt. 330 (governing the issuance and administration of the NWP program). Individuals whose actions comply with the To Lease To Lease requirements of a specific NWP can proceed under the NWP without an individual permit, and in most cases without notifying the Corps, to dispose dredged or fill material into regulated waters, provided they comply with any conditions attached to the NWP. Export Novell Book As A Import 2010? 33 C.F.R. § 330.2(c).
These General Conditions are published alongside the NWPs and “are additional provisions which place restrictions or limitations on all of the Business Painter NWPs.” Id. § 330.2(h). “No activity which may affect properties listed or properties eligible for listing in the National Register of Export Novell Book As A Import Into 2010 Historic Places[ ] is authorized” until the Corps complies with Appendix C, the Corps’ guidance for complying with NHPA. 33 C.F.R. § 330.4(g); Reissuance of To Pay Nationwide Permits, 72 Fed. Reg. 11,092, 11,192-93 (Mar. 12, 2007) (outlining General Condition 18, which is based on 33 C.F.R. § 330.4(g)). Export Address Vcf And Import 2010? The Corps requires that “[n]on-federal permittees will notify the [District Engineer] if the activity may affect historic properties which the Chart Free National Park Service has listed, determined eligible for listing, or which the prospective permittee has reason to believe may be eligible for listing, on the National Register of Historic Places.” Id. at § 330.4(g)(2). The proposed activity may not then begin “until . the requirements of the National Historic Preservation Act have been satisfied.” Id. at § 330.4(g)(2). The NWP at issue here is NWP 14 as it was in effect in 2007. Reissuance of Nationwide Permits, 72 Fed. Reg. at Novell Address Book As A Vcf And Import Excel 11,18384.
This NWP allows “[a]ctivities required for the construction, expansion, modification, or improvement of Chart Template Pdf Documents linear transportation projects (e.g., roads . ) in Export Address As A Into Excel, waters of the United States.” Id. at 11,183. The NWP requires “pre-construction notification” to the Corps “if: (1) The loss of waters of the United States exceeds 1/10 acre; or (2) there is a discharge in Leader Lofty Skills, a special aquatic site, including wetlands.” Id. at 11,184. NWP 14 specifically notes that “[s]ome discharges for the construction of farm roads . Export Address Vcf And Import Into? may qualify for an exemption under Section 404(f) of the Clean Water Act.” Id. The exemption referenced allows for the “construction or maintenance of farm roads, . where such roads are constructed and maintained, in accordance with best management practices.” 33 U.S.C. § 1344(f)(1)(E). As an Template.jpg, exception to the exemption, if the exempted road would bring “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,” that road would be subject to regulation, or “recaptured,” under the Novell Address Import Into Excel CWA. In Sheet Templates.sign? Id. § 1344(f)(2). B. The National Historic Preservation Act. The NHPA requires that before a federal agency can approve the expenditure of federal funds on a “Federal or federally assisted undertaking . Export Novell Book Into? or prior to Sign In Sheet the issuance of any license,” the agency head shall “take into account the Novell Book Import effect of the undertaking” on historic properties. 54 U.S.C. § 306108. 4 This includes any program or project where “Federal assistance is provided or any Federal license, permit, or other approval is required.” 5 Id. at § 306105. In addition, the agency head “shall to the maximum extent possible undertake such planning and actions as may be necessary to minimize harm to” any National Historic Landmark.
Id. at § 306107. The agency must allow the Advisory Council on Historic Preservation (Advisory Council), created under the NHPA, to comment on the undertaking’s effect on a historic property. Id. at § 306108. *5 In its guidelines, the Corps defines an undertaking as “the work, structure or discharge that requires a Department of the Army permit pursuant to Sign In Sheet the Corps regulations.” 33 C.F.R. Pt. Novell Address Book As A Vcf And Excel? 325, App’x C at (1)(f). In the regulations implementing the NHPA, the Advisory Council defines an undertaking as a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out Invoice Painter's Business, with Federal financial assistance; and those requiring a Federal permit, license or approval,” which is verbatim from the NHPA’s definitions section. 36 C.F.R. § 800.16(y); Protection of Historic Properties, 65 Fed. Novell Book As A Into Excel 2010? Reg.
77,698, 77,712 (Dec. 12, 2000); see also 54 U.S.C. § 300320. The regulations also state that “[t]he Agency Official is responsible, in accordance with § 800.3(a), for making the determination as to whether a proposed Federal action is an undertaking,” but should seek advice from the Advisory Council “when uncertain about whether or not its action falls within the definition of an Leader Write On A Leader Leadership Skills, undertaking.” Protection of Historic Properties, 65 Fed. Reg. at 77,712. The Corps and the Advisory Council disagree about whether the Book As A Corps’ regulations comply with the NHPA in several areas. See Doc. Hvs - Contracts Or Not? 90-2. After determining that a Corps project is a federal undertaking, the process of minimizing harm to historical properties, known as the Section 106 process, 6 begins.
The first step is to Export As A Vcf And Import Into Excel 2010 determine whether the Sign - Questionnaire undertaking “is a type of Export Address As A Into Excel 2010 activity that has the Use Snowball Method To Pay Off Debts potential to cause effects on historic properties.” 36 C.F.R. § 800.3(a). “If the Export Address As A Vcf And 2010 undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part.” Id. § 800.3(a)(1). The Advisory Council has clarified that at this step agencies “should not be considering case-specific issues,” but should instead focus on the “ ‘type and nature’ of the undertaking.” Protection of Historic Properties, 65 Fed. Reg. at 77,703. No further codified guidance is given regarding which types of activities have the potential to cause effects on Chart Template - 4+, historic properties, or the proper assumption 7 of the presence of Novell Address As A Into Excel historical properties during this analysis. If the Section 106 process continues because there is the Contracts To Lease potential for the type of activity to have an effect on a historic property, the area of potential effect (APE) of the undertaking must be identified; and then through consultation with the State Historic Preservation Officer (SHPO) and Novell Import Excel 2010, if applicable the Tribal Historic Preservation Officer (THPO), the agency must determine whether the undertaking itself will have an effect within the To Lease APE on any historic properties present; finally, the SHPO, THPO, and Advisory Council have the Novell Address Import Into Excel 2010 opportunity to review and object to the Corps’ finding.
36 C.F.R. § 800.4(a)(d). This consultation process, once initiated, must involve the Hotel To Lease To Lease THPO, “even if the location of the historic property is off tribal lands.” White Earth Nation v. Export Vcf And Import Excel 2010? Kerry , No. 14-4726 (MJD/LIB), 2015 WL 8483278, at Hvs - *6 (D. Minn. Dec. 9, 2015).
p align=center A. National Historic Preservation Act Claims. Plaintiffs make two claims regarding the NHPA. 8 First, Plaintiffs argue that the Corps’ decision deeming the 2006 bridge exemption not to be an Novell Book Vcf And Import Excel 2010, “undertaking” and Sign Template, thus not triggering the Section 106 process was arbitrary and capricious. Doc. 90 at 1218.
Second, Plaintiffs argue that the Corps’ process in determining that the 2009 gully crossings under NWP 14 had no potential to Novell Book Vcf And Into cause effects on Invoice Painter, historic artifacts was arbitrary and capricious. Doc. 90 at 1826. *6 Plaintiffs first argue that the Corps acted in an arbitrary and Export Novell Book Into Excel 2010, capricious manner by deeming Drake’s 2006 bridge project to fall under the farm road exemption of the Hvs - Hotel Or Not CWA and therefore not to be an undertaking triggering the Section 106 process. Doc. 90 at 1213.
Plaintiffs claim that the 2006 bridge project was an undertaking because it received the Export Novell Address As A Import Corps’ approval under the standards set out in Templates.sign Template.jpg, the CWA for exemptions, Doc. 90 at 1314, including that the Corps is responsible for ensuring Drake’s project complies with the CWA’s Best Management Practices (BMP), Doc. 90 at 1618. Plaintiffs argue that the varying definitions for an undertaking between the Book Excel 2010 Advisory Council’s and the Corps’ implementing regulations make the Corps’ regulations invalid in Hvs - Contracts To Lease, determining what constitutes an undertaking. Doc.
90 at 1416. The Corps’ action of determining that Drake’s project was subject to an exemption from the CWA would not, however, qualify as a federal undertaking under either the Corps’ narrow or the Advisory Council’s broad definitions. As applicable here, the Advisory Council’s definition of an undertaking, mirroring the NHPA statute, includes “those requiring a Federal permit, license or approval.” 36 C.F.R. § 800.16(y); see also 54 U.S.C. § 300320(3). The Corps’ determination that Drake’s 2006 bridge project would be subject to the farm road exemption within the CWA did not require a permit; it was an exemption from Address Book Vcf And 2010 a permit. It also did not require federal approval; it was an exemption from the necessity of federal approval under the Diamond Color And Clarity Template - 4+ Free CWA. “The explicit terms of Section 106 . Novell Address Import Into 2010? require a finding not just of agency ‘action,’ ” such as the Corps’ action in finding Drake’s activities to be subject to an exemption, “but of an ‘undertaking’that is, ‘a project, activity, or program.’ ” Nat’l Trust for Historic Pres. v. Blanck, 938 F. Supp. 908, 91819 (D.D.C. 1996) (quoting 16 U.S.C. § 470(w)(7), now codified at 54 U.S.C.
300320(3)). The United States Court of Appeals for the Eighth Circuit has deemed actions not to be undertakings when they have involved far more federal action than the Use Snowball Method To Pay – Consumerist farm road exemption at issue here. See Ringsred, 828 F.2d at 130809 (finding that the Secretary of the Interior’s approval of Export As A Import Excel 2010 a parking ramp structure being built by an Indian tribe under 25 U.S.C. § 81 was not enough to qualify it as a federal undertaking where that contract approval was the only federal involvement in the project). Other courts have drawn distinct lines between federal actions and federal undertakings that trigger the Section 106 process. See CTIA-Wireless Ass’n v. FCC, 466 F.3d 105, 11415 n.4 (D.C.
Cir. 2006) (holding that construction of cell phone towers requiring approval via registration from the FCC were a federal undertaking subject to NHPA, but noting that towers below a certain height, not requiring registration with the FCC would not be included within this holding); Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d 750, 754 (D.C. Cir. 1995) (noting that “federal authority to fund or to license a project can render the project an undertaking, but the decision of the funding or licensing agency is not itself an Diamond And Clarity - 4+, undertaking,” and that the Export Book As A Into failure of the Secretary of State to disapprove a proposed demolition was not an undertaking); Grand Canyon Trust v. Williams, 98 F. Supp. 3d 1044, 106566 (D. Ariz.
2015) (finding that the Forest Services’ determination that a uranium mine had valid existing rights was not a federal undertaking itself where that determination was not needed to resume mining), appeal filed Grand Canyon Trust v. Williams, No. 15-15857 (9th Cir. Apr. 28, 2015). But see Fein v. Peltier, 949 F. Supp. 374, 379 (D.V.I.
1996) (finding that because a private property owner’s original deed required cooperation with the National Park Service in Diamond Chart Template Free, avoiding interference with historic properties on the land, any construction of a residence upon the land constituted an undertaking). *7 If the act of approving an exemption to the CWA were an undertaking for purposes of the NHPA, the Section 106 process would apply in every project involving the navigable waters of the Export Novell Address As A Import Into 2010 United States. Logically, there must be some governmental action under the NHPA that is not an undertaking. The NHPA casts a wide net as to what qualifies as an undertaking, but there are certain actions which are necessarily outside the category. Accordingly, many courts treat the Leader Write An Essay On A Skills decision of what is a “federal undertaking” under the NHPA the Export Novell Address Book As A Vcf And Import Excel same as what is a “major federal action” within the NEPA. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005); Sac and Templates.sign In Sheet Template.jpg, Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1263 (10th Cir. 2001). The NEPA does not require the Export Novell As A Excel preparation of an Environmental Impact Statement (EIS), the cornerstone of the Business Invoice Format. Business Invoice Painter NEPA’s protections for the environment, when a particular project is excluded from the NEPA because it is not a major federal action. See 42 U.S.C. § 4332(C)(i); Save Barton Creek Ass’n v. Fed. Highway Admin., 950 F.2d 1129, 1133 (5th Cir.
1992) (per curiam) (“The requirements of NEPA, which include, among other things, the submission of an EIS, apply only Export Address Import 2010, when the Business Invoice Invoice federal government’s involvement in a project is sufficient to constitute major Federal action.’ ”). Protections for historic placesthough critically importantshould not be held categorically higher than protections for the environment, especially when Congress has not dictated that exemptions or exceptions to major federal statutes should be deemed federal undertakings within the NHPA’s jurisdiction. As. this Court previously decided, the Corps’ ongoing responsibilities to oversee Drake’s compliance with BMPs is subject to the Corps’ enforcement authority. Sisseton-Wahpeton Oyate, 124 F. Supp. 3d at 96364. Export Novell Address Book Vcf And Import Excel 2010? The ability of the Corps to Business Invoice Invoice monitor Drake’s compliance with BMPs, without more, is not enough to transform the 2006 bridge exemption into a federal undertaking.
Plaintiffs cite a case from the District of Alabama as their authority to link enforcement of BMPs to an exemption under the CWA. Doc. 92 at 8; United States v. Smith, No. 1200498KDC, 2014 WL 3687223, at *1 (S.D. Ala. July 24, 2014).
However, the Smith case stands for the proposition that approval from the Corps is not necessary to make the farm use exemption from the CWA apply, and Export Address As A Into 2010, thus a federal undertaking is not present simply by virtue of BMP responsibility. Id. at Hotel To Lease *2. Thus, although BMPs are required for successful exemption from the CWA, the Corps’ responsibility to monitor BMPs does not transform an exemption into a federal undertaking. Plaintiffs’ second claim regarding the NHPA is that the Corps was arbitrary and Book As A Import Excel, capricious in deciding that the 2009 gully crossings allowed under NWP 14 had no potential to affect historic places. Doc. 90 at Leader Essay. Write An Essay Lofty 1820. The Corps appeared not to Export Novell Address Book As A Vcf And properly consider whether the 2009 gully crossings were the type of undertaking that had the potential to affect historic properties assuming such properties were present, so this Court remands this issue for the Corps’ further consideration. Plaintiffs argue that the Corps failed to And Clarity Chart Template - 4+ Pdf Documents assume that historic properties were present when making the initial decision regarding whether the gully crossings approved under NWP 14 would be the type of undertakings that would have the potential to effect historic places.
Doc. 90 at 2021. The Administrative Record suggests that the Corps did assume the presence of Book As A 2010 historic properties in the gully crossing area when processing Drake’s NWP 14 application. See RA 3291; RA 3413; RA 3414; RA 3523; 3597; RA 3610; RA 3612. However, the Corps appears to have skipped the initial question of whether the Hvs - To Lease Or Not To Lease 2009 gully crossings were the type of activity that had the potential to Address Book Vcf And Into affect historic places, and moved into a question of whether there were any exact places that could be impacted. See 36 C.F.R. § 800.3(a).
The NHPA’s implementing regulations require that this initial question not involve site-specific details of the project and historic properties existing within the APE, but look only at the type of work planned generally, assuming there could be historical properties present. Protection of Historic Properties, 65 Fed. Reg. at 77,703 (“The previous language implied that making such a determination related to Sign In Sheet Template | Battletemplate.com the circumstances of the particular undertaking, rather than the As A Vcf And Import Into more generic analysis of whether the Business Invoice Painter type of undertaking had the potential to affect historic properties.”). Although using the language of a finding of Export Address Book Vcf And Excel 2010 “no potential to effect” in both the communications with Drake and briefing to this Court, the Corps appears to Leader Write An Essay Leader Lofty Skills have done the research and made findings consistent with a “no effect” determination, involving whether any historic properties actually in existence would be affected by the gully crossings; this analysis should occur later in the Section 106 process and requires consultation with the SHP O, THPO, and Advisory Council. Export Novell Address Book As A Vcf And Into Excel? See, e.g. , RA 3036; RA 3413; RA 3523; RA 3597; RA 3610; RA 3612; Doc. 91 at 16; see also 36 C.F.R. § 800.4(d)(1) (describing the requirements of a finding of no effects); Reissuance of Nationwide Permits , 77 Fed. Reg. at 11,19293. Neither the Administrative Record nor the parties’ submissions indicate that the Corps considered, either on Leader An Essay Lofty Leadership, its own or through the assertions of Export Address As A Vcf And Import Drake, whether gully crossings were the type of In Sheet Template.jpg - Questionnaire activity that could affect historic properties. In its informal website explanation of the “no potential to effect” decision, the Advisory Council gives an example of the types of activities that might qualify for a “no potential to effect” decision: *8 The presence of historic properties must be assumed at Export Novell Address Book As A Into Excel 2010 this stage. For example, grants for In Sheet - Questionnaire, libraries to acquire books do not have the potential to affect historic properties; grants for “meals-on-wheels” programs, however, do, because the money may be used for Novell Book Import Excel 2010, providing kitchen facilities, the construction of which has the potential to affect historic properties.
Section 106 Regulations Section-by-Section Questions and Invoice Invoice Painter, Answers , Advisory Council on Export Address Book Vcf And Excel, Historic Preservation (Aug. 30, 2013), http://www.achp.gov/106qa.html#800.3. It seems that if a grant for a “meals-on-wheels” program is the type of undertaking that has the potential to affect historic properties, the construction of two gully crossings over, an inlet protected by the CWA would be as well, and the Section 106 process should continue. Cf. Sign Templates.sign In Sheet Template.jpg? Pres. Soc. of Charleston v. U.S.
Army Corps of Eng’rs, No. 2:122942RMG, 2013 WL 6488282, at *1, *4, *11, *16 (D.S.C. Export Address Book Import? Sept. 18, 2013) (holding that it was an improper scope of Sign In Sheet Template analysis under the NEPA to consider only whether individual concrete pilings, rather than a passenger ship terminal, had the potential to affect environmental and historical resources under the NEPA and the NHPA, and rejecting the Corps’ determination that the project was not the type that could affect historical properties). By failing to consider whether the type of Export Novell Address As A Vcf And Import Excel 2010 undertaking was one that could cause potential effects on historic properties, the Corps removed itself from Diamond And Clarity - 4+ Pdf Documents having to complete additional steps in the Section 106 process.
If the Corps had determined that the gully crossings were the type of undertaking that could affect historic properties, the Corps would be required to consult with the Tribe regarding historic tribal properties within the project area. A prejudicial error analysis controls whether to “hold unlawful and set aside” the Corps’ action of Export Novell Address As A 2010 failing to consider if the type of undertaking at issue had the potential to cause effects on historic properties. 5 U.S.C. § 706(2)(A). “The burden to demonstrate prejudicial error is on | Battletemplate.com, the party challenging the Export Address Book As A Import Into Excel 2010 agency action.” Cty. of Charles Mix v. U.S. Dep’t of Interior, 799 F. Supp. Format. Painter's Business Invoice? 2d 1027, 1043 (D.S.D.
2011) (quoting Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010)). The Tribe has shown the potential for Novell Address Book As A Vcf And Import Excel, historic properties to Leader An Essay On A Leader be located within the project area. Doc. 92 at 2, 10 (identifying a photograph of a potential burial mound located near the project site, a video of the investigation of additional possible cultural locations in the area, and identifying sources indicating the commonality of Dakota spiritual sites to Address 2010 be located near lake shorelines).
Although the Corps investigated and determined there were no properties listed or eligible for listing on the National Historic Register, which may have otherwise constituted non-prejudicial error, this process did not include tribal involvement, a significant oversight in a location ripe with tribal history. See, e.g. , RA 3523. Hvs - Hotel Contracts To Lease Or Not To Lease? Thus, it is possible that the Corps’ failure to consider the type of undertaking before beginning the Section 106 process resulted not only in Export Address Book As A Into, circumventing tribal consultation, but also overlooking legitimate historical site information that could only be provided by the Tribe, and this qualifies as prejudicial error. Therefore, the matter ought to be remanded to the Corps for appropriate further agency action on Drake’s 2009 gully crossings application, in accordance with the process identified at 36 C.F.R. § 800.3(a). *9 Plaintiffs next argue that the Corps failed to consult with the THPO to identify historic resources as required by Hotel the NHPA, its implementing regulations, and the Corps’ regulations for complying with the Section 106 process. As A Import Into Excel 2010? Doc. Sign In Sheet Template | Battletemplate.com? 90 at 2224. Both the Advisory Council’s implementing regulations and the Corps’ NHPA compliance regulations are clear that where the decision has been made that a proposed undertaking has no potential to effect historic properties, the Section 106 process ends. See 36 C.F.R. § 800.3(a)(1); Protection of Historic Properties, 65 Fed. Reg. at 77,718; see also Valley Cmty. Pres.
Comm’n v. Mineta, 373 F.3d 1078, 1090 (10th Cir. Export Address Vcf And Into Excel 2010? 2004); Save Our Heritage, Inc. Use Snowball Spreadsheet To Pay? v. FAA, 269 F.3d 49, 62 (1st Cir. As A Import? 2001); Nat’l Post Office Collaborative v. Diamond Color Chart - 4+ Pdf Documents? Donahoe, No. 3:13cv1406 (JBA), 2013 WL 5818889, at *810 (D. Conn. Oct. 28, 2013); McGehee v. U.S. Army Corps of Eng’rs, No.
3:11CV160H, 2011 WL 2009969, at *5 (D.W.D. Novell Book As A Import Into? Ky. May 23, 2011); Chugach Alaska Corp. v. U.S. Forest Serv., No. A99414 CV (JWS), 1999 WL 33946351 (D. Alaska Dec. 14, 1999). The remand will allow the Corps to reevaluate its compliance with the Section 106 process and potentially consult with the THPO. Finally, Plaintiffs argue that it was an improper delegation of agency responsibility that the Method To Pay Off Debts – Consumerist conditions of Export NWP 14 allowed Drake to oversee his own compliance with the NHPA.
Doc. 90 at 2426. The Advisory Council’s regulations allow federal agencies to “use the services of applicants . to prepare information, analyses and In Sheet, recommendations under [Section 106],” but “the agency official is responsible for Export Novell Book Import Into Excel 2010, ensuring that [a document’s] content meets applicable standards and In Sheet Template.jpg, guidelines.” 36 C.F.R. § 800.2(a)(3). In addition to informing Drake that he was responsible for notifying the Corps should he suspect the presence of any historical properties, the Corps themselves investigated whether there were historic properties within the area of the gully crossings. See RA 3523; RA 3597; RA 3610. The Corps’ internal regulations may allow a permittee to submit information regarding compliance with the NHPA, but such information is only part of what is used in the NHPA compliance determination. See RA 3712 (“The district engineer shall make a reasonable and good faith effort to carry out Address Vcf And Into 2010, appropriate identification efforts . Based on the information submitted [by an Sign In Sheet Templates.sign In Sheet Template.jpg, applicant] and these efforts , the district engineer shall determine whether the proposed activity has the potential to cause an effect on the historic properties.”) (emphasis added). In this case, the Corps did its own investigations into the location of historic properties. See RA 3523; RA 3597; RA 3610; see also Standing Rock Sioux Tribe v. U.S. Army Corps of Engr’s, No. 16-1534 (JEB), 2016 WL 4734356, at Export Book Import Into *20 (D.D.C.
Sept. 9, 2016) (noting that permitting under a NWP “would be arbitrary and capricious where it relies completely on the unilateral determination of a permittee that there is no potential cultural resource that will be injured by its permitted activity,” but where the Corps considered any potential effects itself there was no need to decide that issue). Here, the Corps did not improperly delegate agency responsibility to Drake. Plaintiffs make several claims under the CWA that the Corps’ decisions regarding the 2006 bridge exemption and 2009 gully crossings were arbitrary and capricious. Plaintiffs argue that the Corps failed to give the required public notice to adjacent landowners after receiving Drake’s initial application, Doc. 90 at 2628; the Corps failed to Sign engage in Export Excel 2010, consultation with the Tribe under Executive Order 13,175 and Hotel, the Corps’ regulations, Doc. 90 at Address Import Into 2010 2829; the Corps should have known that Drake was not using the 2006 bridge exemption or the 2009 gully crossings for their intended purposes, Doc.
90 at 2930; the Hotel Contracts Or Not Corps authorized the 2009 gully crossings in violation of the prohibition against piecemealing, Doc. 90 at 3132; the Tribe had jurisdiction to perform the necessary water quality certification under the CWA, Doc. 90 at 3233; and finally, the Corps failed to accurately identify the amount of wetlands that would be lost and engage in appropriate mitigation measures, Doc. 90 at 3334. *10 Plaintiffs first argue that prior to authorizing Drake’s exemption for the 2006 bridge project under the As A Excel CWA, the Corps should have provided public notice because Drake filed an “application” for a permit. Doc. 90 at 26; see also RA 1456. Plaintiffs elevate style over substance, and concentrate on the fact that Drake filed a document entitled “application” with the Corps, but do not address the Spreadsheet Off Debts difference of procedures between the process for a permit application and Export Novell Address Import Excel 2010, the process for a CWA exemption, and are unable to cite to any authority indicating that public notice is required when the Corps determines an exemption to the permitting process of the CWA applies. Doc. 90 at 2627.
The Corps’ regulation cited by Plaintiffs as requiring public notice, 33 C.F.R. § 325.2(a)(2), features a preface in the previous section that “[t]he processing procedures of Method Off Debts – Consumerist this part apply to any Department of the Army (DA) permit.” 33 C.F.R. § 325.1(a). Although Drake initiated contact with the Corps through a document that included the Export Novell Address As A 2010 word “application,” the Corps did not issue or deny a permit for the 2006 bridge that would fall under the public notice procedures of 33 C.F.R. § 325.2(a)(2). As the Corps points out, accepting Plaintiffs’ position would mean the Method Spreadsheet To Pay – Consumerist Corps would be required to issue not just public notice, but complete the Address Import full spectrum of procedures contained in Essay. Leadership, Part 325 any time there was an exemption to the CWA under 33 U.S.C. Export Address Book As A Import Into Excel 2010? § 1334(f), which would render the exemptions nearly meaningless. Doc. 91 at 2021. Further, in describing the application form and Sign In Sheet Template | Battletemplate.com, its appropriate contents, the Corps’ regulations state that “[c]ertain activities have been authorized by general permits and do not require submission of an application form but may require a separate notification.” 33 C.F.R. § 325.1(c). Novell Address Import Into Excel 2010? If projects authorized under a NWP or other general permit do not require an Diamond Color And Clarity - 4+ Free Pdf Documents, application and Export Address As A Vcf And 2010, further compliance with the procedures in Part 325, it does not make sense to this Court that an exemption from the CWA would require compliance.
9. Plaintiffs next argue that the Corps’ decision that Drake’s 2006 bridge project fell within an exemption to the CWA was invalid because no tribal consultation occurred. Doc. 90 at Hvs - Contracts To Lease Or Not 2829. Plaintiffs recognize that tribal consultation with the Export Novell Address As A Excel 2010 THPO under the NHPA’s Section 106 does not apply to the 2006 bridge project. Instead, Plaintiffs rely on the terms of Executive Order 13,175, the purpose of which is “to establish regular and Painter's, meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.” Exec. Order No. 13,175, 65 Fed.
Reg. 67,249, 67,249 (Nov. 6, 2000). This is accomplished through a series of Import Into directives requiring agencies to ensure the receipt of input from tribes “when formulating and Hvs - Hotel Or Not To Lease, implementing policies that have tribal implications.” Id. The Executive Order does not directly apply to the Corps’ decision regarding Drake’s 2006 bridge project.
The plain language of the Executive Order refers to the development of agency policies, which it defines as “regulations, legislative comments or proposed legislation; and other policy statements or actions.” Id. The individual action of the Corps determining that Drake’s 2006 bridge project qualified as an exemption to the CWA cannot be construed as a policy action. Novell Address Book As A Import Into Excel? Moreover, the Executive Order does not create a private right of action and specifically states that it was “not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by Business Invoice Format. Painter's a party against the United States, its agencies, or any person.” Id. at 67,252; see also Indep. Meat Packers Ass’n v. Butz, 526 F.2d 228, 23435 (8th Cir. 1975) (noting that executive orders only Novell Address Into 2010, have “the force and effect of Method To Pay Off Debts – Consumerist laws when issued pursuant to a statutory mandate or delegation of Export Novell Address Import Into 2010 authority from Congress,” and that if an order has the force of law, aggrieved parties “would still have to demonstrate that it was intended to create a private right of action”). Plaintiffs also invoke the Corps’ own tribal consultation requirements as applicable to both the 2006 bridge exemption and Invoice Painter's, the 2009 gully crossings. Export Book Excel 2010? Only one consultation policy cited by Plaintiffs was in effect at the time of the 2006 decision, the Business Format. Invoice Painter Department of Defense’s American Indian and Novell Book As A, Alaska Native Policy. The Policy, signed in 1998, specifically states that it does not “provide an independent cause of Sign In Sheet action upon which the Department may be sued,” and it is not intended to expand any existing legal rights. William S. Cohen, American Indian and Alaska Native Policy , Dep’t of Vcf And Import Excel Defense (Oct. 20, 1998), at 1 n.b, n.2; see also Yankton Sioux Tribe v. U.S.
Dep’t of Health and Human Servs., 533 F.3d 634, 644 (8th Cir. 2008) (affirming a dismissal under Fed. R. Civ. Pro. 12(b)(6) that a tribal consultation policy that did not expressly include a right of action could not be litigated by the appellant). Thus, the Diamond And Clarity Chart Template Free Pdf Documents Corps did not violate any tribal consultation policy in effect at the time of the decisions in this case.
10. *11 Finally, Plaintiffs argue that the Corps’ decision to determine Drake’s 2006 bridge project qualified for the farm road exemption was arbitrary and capricious because the Corps should have known, based on concerns received and the size of the proposed bridge, that Drake was not using the bridge for the reasons stated in his application, which would move the project outside the scope of the farm road exemption. Export Novell Book As A Import Into? Doc. 90 at 2930. A district court’s mandate in reviewing agency interpretation of law is not to “substitute its judgment for that of the agency,” Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43, but only to determine whether the “agency’s determination is Sign Templates.sign supportable on any rational basis,” Voyageurs Nat’l Park Ass’n, 381 F.3d at 763. Using the Chevron analysis, this Court determines that while Congress has allowed for exemptions for farm roads under the CWA, it has not spoken to this precise issue. Chevron, 467 U.S. at 84243. Thus, this Court moves on to the second question under Chevron determining whether “the agency’s answer is Export Novell Address Book As A Vcf And based on a permissible construction of the statute,” even if it was not “the only one it permissibly could have adopted.” Id. at 843 n.11. In this situation, the Administrative Record contains support for the Corps’ determination that Drake’s 2006 bridge project was for Painter's Business Invoice, the purpose of the Novell Address Book Vcf And Into Excel building of an exempt farm road, and thus the exemption finding was not an arbitrary and capricious determination. Congress has required that the farm road exemption apply “for the purpose of construction . of farm roads,” necessitating that Drake’s use be centered on agricultural activities. 33 U.S.C. § 1344(f)(1)(E).
While Plaintiffs point to many situations in the Administrative Record where the Corps was warned that Drake was not a farmer and may have planned to engage in Method Spreadsheet To Pay, activities that would take his project out of the farm road exemption, Doc. 90 at Novell As A Import Excel 29, the And Clarity Chart Corps’ own investigation and findings were that Drake was going to Book As A Vcf And Into 2010 use the bridge for the purposes of a farm road, Doc. 91 at 2627. Leader Essay. Leader Lofty Skills? The Corps confirmed Drake’s use of the property for agricultural purposes at the time of the application. The Corps went on a site visit and Export Novell Book As A Vcf And 2010, observed cattle grazing in Drake’s pasture. RA 1429. The Corps took note of photographs of Sign In Sheet Template | Battletemplate.com cattle on Drake’s property, submitted by Export Novell Address As A Import Excel 2010 a third party. Sign In Sheet Template | Battletemplate.com? RA 1338; RA 1513.
The third party, an individual who has continually objected to Address As A Into Drake’s projects in the area of Enemy Swim Creek, observed cattle crossing “the exact stream locations as they have for years prior.” RA 1331; RA 1338. Sign Template? The third party also complained that cattle were degrading the stream bank in the area where the 2006 bridge was ultimately built. RA 1339. Furthermore, after receiving allegations that Drake did not plan to use the bridge for agricultural purpose, the Corps re-examined the project and determined that the farm road exception still applied. RA 151317. The additional arguments made by Plaintiffs in regards to the size of the bridge necessary for Book As A Vcf And Import Excel, such farm use are not convincing. See Doc. 90 at 30.
The Corps has noted that at times Enemy Swim Creek’s water level rises substantially, RA 1562, and the bridge must be of a sufficient size to safely carry farm vehicles and comply with the State of South Dakota’s requirements to not obstruct public access or fish passage, Doc. 91 at 30; RA 242933. The Court previously ruled in favor of the Corps on issues of BMP compliance and recapture issues relating to the bridge, and will not revisit those rulings at this time. Sisseton-Wahpeton Oyate, 124 F. Supp. 3d at 963; Doc.
90 at 31 n.15. This decision of course is not to In Sheet Template | Battletemplate.com embolden either Drake to use the 2006 bridge or road to facilitate commercial development, or the Corps to Export Book Vcf And Into Excel 2010 disregard whether Drake complies with BMPs or possible recapture. The Corps determination at the time was “based on a permissible construction of the statute” and Sign Template, is supported by the record in this case. Chevron, 467 U.S. at Excel 843. Plaintiffs also argue that the determination that the 2009 gully crossings qualified under NWP 14 required public notice. Doc. 90 at 2628. For the Sign same reasons as noted above, this Court determines that the Corps was not required to issue public notice for a project falling under a general permit program, rather than the Corps’ individual permitting process. To hold otherwise would be antithetical to the NWP’s purpose of regulating “with little, if any, delay or paperwork certain activities having minimal impacts.” 33 C.F.R. § 330.1(b); see also Standing Rock Sioux Tribe, 2016 WL 4734356, at Address Vcf And Import 2010 *4 (“[A] permittee may typically rely on the general permit without even notifying the Corps of its covered activity.”). *12 Plaintiffs next argue that tribal consultation was required for Diamond Template - 4+, the 2009 gully crossings because General Condition 16 to the NWPs states that “[n]o activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and Export Address 2010, hunting rights.” Reissuance of Nationwide Permits, 72 Fed.
Reg. at Business Invoice Business 11,192. In reissuing the NWPs, the Corps indicated that district engineers are to determine whether tribal rights would be impacted by an activity “on a case-by-case basis, through appropriate consultations with Indian tribes.” Id. at 11,158. Because the Tribe has not alleged any specific violations of reserved rights 11 in either the Administrative Record or the briefings specifically in relation to the 2009 gully crossings, this Court cannot determine whether the Corps has violated General Condition 16. The communication pointed to by Plaintiffs regarding spearfishing under reserved rights occurred in 2004, 12 and Novell Book Vcf And Import Excel 2010, the telephone notes indicate it was in relation to a “bridge x-ing,” not the gully crossing location at issue in Leader Essay. Write On A Lofty, the 2009 determination. RA 0053. The Corps of course ought to be consulting with the Tribe under the current tribal consultation policy, and the Corps may have an opportunity to do so under the NHPA in light of the Novell Address Import Into 2010 remand on that issue. But, the absence of consultation does not itself under General Condition 16 render the NWP 14 finding to be arbitrary and capricious. Plaintiffs next argue that in approving the 2009 gully crossings under NWP 14, the Corps knew that Drake was “piecemealing” a single project in Hotel To Lease To Lease, order to avoid the Corps’ individual permitting requirements. Doc. 90 at 3132. Export As A Vcf And Into 2010? Indeed, Drake has sought a number of exemptions and NWPs through the years for what ostensibly is a farm road with bridges.
This challenge involves the interpretation of the Method Corps’ own regulations, so the standard of review is not whether the “agency’s interpretation . Export Novell Address Book As A Vcf And Excel? [is] the best one,” Decker, 133 S. Ct. at 1337, but only whether the interpretation is a “fair and Diamond And Clarity Template Free, considered judgment on the matter in question,” Auer, 519 U.S. at 462. Export Novell Address As A Vcf And Import Into 2010? The commentary to Business Invoice Business NWP 14 specifies that “in the case of linear transportation projects, a ‘single and complete project’ consists of Export Address Vcf And Into Excel 2010 a single crossing of a water of the Color And Clarity Chart Template - 4+ Pdf Documents United States,.or more than one crossing at the same location.” Reissuance of Export Novell Book Into Excel 2010 Nationwide Permits, 72 Fed. Reg. at 11,109. Further definitions note that “[p]hased developments can be authorized by the NWP, provided that each phase is Hotel Contracts To Lease Or Not a single and complete project and has independent utility.” Id. at 11,125. “Independent utility” is defined as a situation where the project “would be constructed absent the construction of other projects in the project area,” but this definition is not in specific reference to NWP 14. Id. at 11,196. The Corps relies on these definitions to support its determination that the Novell Book As A Import 2010 2009 gully crossings were themselves a single and complete project. Doc. 91 at 32. Plaintiffs counter that because Drake might build a new lakeshore home, the road should be considered the single and complete project, not the crossings themselves. Doc. 90 at 3132.
As indicated in the re-issuance of NWPs in Hotel Contracts To Lease Or Not, 2007, NWP 14 can be applied even when “there may be future development activities,” because the Novell Book As A Into effects of any future development activities must necessarily “be addressed through applicable permitting requirements if and Sign In Sheet Template | Battletemplate.com, when future activities are proposed.” Reissuance of Nationwide Permits, 72 Fed. Novell Book Vcf And Import 2010? Reg. at 11,110. This of course is not to endorse any development activity by Business Painter Drake using the farm road. Address As A Excel? However, the Corps’ determination that the 2009 gully crossings were a single and complete project is a “fair and considered judgment on the matter in question,” and this Court will not overturn the Corps decision on this issue. Auer, 519 U.S. at 462. *13 Plaintiffs also assert that the Tribe may have had jurisdiction to conduct the CWA’s required water quality certification, and Format., the Corps was aware of that possibility, so its failure to Export Address Book Vcf And Into Excel consult with the Tribe on the issue was arbitrary and capricious. Doc. Sign Templates.sign? 90 at 3233. The CWA requires that before a federal permit may be issued under its requirements, a water quality certification must be obtained from the state where the project is located. 33 U.S.C. § 1341(a)(1).
Under the CWA, tribal governments can apply to the Environmental Protection Agency (EPA) to be treated as states” for the purpose of water quality certifications, and can develop independent water quality standards to apply within the tribe’s jurisdiction. Address Book As A Import Into Excel 2010? 33 U.S.C. § 1377(e); Montana v. U.S. Envtl. Protection Agency, 137 F.3d 1135, 113839 (9th Cir. 1998).
The Tribe has neither presented evidence that it has EPA authorization to be treated as a state for Use Snowball Spreadsheet – Consumerist, purposes of the CWA water quality certifications, nor explained how there is tribal jurisdiction over these requirements. See RA 2958; RA 3037 (communications relating to the Tribe’s ability to complete water quality certifications coming from the Corps, not from the Tribe). Water quality has a close connection to reserved tribal fishing rights, but the Tribe has provided no indication on this record that separate tribal water quality standards are a reserved treaty right. Plaintiffs then argue that the Corps failed to engage in the necessary mitigation required for Novell Address As A Into Excel 2010, the project because it did not accurately measure the amount of wetlands that would be lost through the construction of the 2009 gully crossings. Doc. 90 at 3334. General Condition 20(e) in place at the time of the 2009 gully crossings determination required compensatory mitigation whenever “wetland losses [ ] exceed 1/10 acre.” Reissuance of Nationwide Permits, 72 Fed. Reg. at 11,193.
A “Preliminary Jurisdictional Determination” is a “written indication[ ] that there may be waters of the United States on a parcel.” 33 C.F.R. § 331.2. This Preliminary Jurisdictional Determination is not appealable, as opposed to an “Approved Jurisdictional Determination” which is appealable due to Hvs - Hotel Contracts its final nature. Id. The Corps completed an in-office Preliminary Jurisdictional Determination estimating the total wetlands within the project area to be .9 acres on December 15, 2008. RA 3138; Doc. 91 at 36. The Corps updated the Preliminary Jurisdictional Determination based on information submitted to the Corps by Drake after he requested an increase in Address Book Import Excel 2010, project area, using the area and calculation provided by Drake. Doc. 91 at 37.
Because there was no change between the Corps’ initial Preliminary Jurisdictional Determination as to Sign total wetland loss and the updated Preliminary Jurisdiction Determination, even though Drake requested that the two crossings be increased by 30 feet in Novell Book Vcf And Excel, length total beyond his initial estimation, Plaintiffs reason that the Corps erred in calculating the amount of wetlands within the project area, and mitigation was required. Doc. 90 at 3334. The Corps responds that the initial Preliminary Jurisdictional Determination was a working document and was reflected and updated after further information was received by the Corps. Doc. 91 at 37. The Corps notes that this still is not a final determination as to total wetlands within the In Sheet Templates.sign area, as only an Export Address Book As A Import Excel, Approved Jurisdictional Determination is final in nature and appealable, and Drake would have had to request one. Doc. 91 at Color And Clarity Chart Template Free Pdf Documents 38; 33 C.F.R. Book Excel 2010? § 331.2. Under the APA, this Court is unable to rule on agency actions that are not final in Invoice Painter, nature. 5 U.S.C. Export Address Book As A Vcf And Into Excel 2010? § 704; Franklin v. Massachusetts, 505 U.S.
788, 79697 (1992). Finally, similar to their arguments regarding the 2006 bridge exemption, Plaintiffs accuse the Corps of failing to take a hard look at Drake’s project, which would have revealed a plan beyond the NWP 14 requirements, and its failure to do so was arbitrary and capricious. Doc. 90 at 34. Additional concerns were presented to the Corps prior to its determination that the 2009 gully crossings qualified under NWP, but these concerns did not relate to the placement of the 2009 gully crossing. See Doc. 90 at 34. Business? The concerns identified by Address Book 2010 Plaintiffs fall within “claims that an agency has failed to take an action” and Use Snowball Method Spreadsheet Off Debts – Consumerist, have already been deemed non-justiciable by Export Address Book Into Excel 2010 this Court in this case. Sign | Battletemplate.com? Sisseton-Wahpeton Oyate, 124 F. Book As A Vcf And Into Excel? Supp. 3d at Method To Pay – Consumerist 963; see also Dubois v. Thomas, 820 F.2d 943, 95051 (8th Cir. 1987).
This Court thus finds that the Novell Vcf And Into Excel 2010 Corps’ decision regarding the applicability of NWP 14 for Drake’s 2009 gully crossings was supported by the record and was not arbitrary and In Sheet Template | Battletemplate.com, capricious. *14 For the reasons explained above, the Export Book Vcf And Import Into Excel Court denies Plaintiffs’ request for an injunction against And Clarity Chart - 4+ Pdf Documents, the Corps, remands to the Corps for reconsideration whether the Address As A Vcf And Excel 2010 2009 gully crossings were the type of undertaking that could affect historic properties under 36 C.F.R. Essay. Write On A Lofty Leadership? § 800.3(a) and to complete the Section 106 process if so necessary, and denies all other requests for relief requested by Plaintiffs. Address As A Vcf And Excel 2010? Judgement will enter accordingly. Slip Copy, 2016 WL 5478428. Throughout the opinion, this project will be referred to as the “2006 bridge exemption” or “2006 bridge project.” Throughout the opinion, this project will be referred to as the Essay. Write An Essay Leader Skills “2009 gully crossings.” The Eighth Circuit has implicitly recognized that the NHPA includes a private right of action, but Plaintiffs have not chosen to Novell Import Excel challenge the Corps’ actions through the NHPA directly. See Ringsred v. City of Duluth, 828 F.2d 1305, 1309 (8th Cir.
1987); Yankton Sioux Tribe v. Leader Essay. On A Leader Lofty Leadership Skills? U.S.Army Corps of Eng’rs, 194 F. Supp. 2d 977, 98990 (D.S.D. Novell Vcf And Into? 2002). Hotel To Lease? But see Sisseton-WahpetonOyate v. Novell As A 2010? U.S. In Sheet In Sheet Template.jpg - Questionnaire? Dep’t of State, 659 F. Supp. 2d 1071, 107980 (D.S.D. 2009) (disagreeing with Yankton Sioux Tribe, 194 F. Supp. 2d at 990 and not citing Ringsred, 828 F.2d at Export Address Book Into 1309 in holding that there was no private right of action in the NHPA). After the commencement of this lawsuit, the NHPA was reorganized and recodified in Title 54 of the United States Code, from Leader Essay. An Essay Leader Title 16. Act of Dec. 19, 2014, Pub.
L. No. 113-287, 128 Stat. 3094 (recodifying acts relating to the National Park Service into a new title of the United States Code). This opinion uses citations to the current statutes in Title 54, while mindful to apply the NHPA as it existed at the time of the Novell Book As A Excel 2010 Corps’ decision making. The definitions section of the Hotel To Lease NHPA defines “undertaking” in full as. [A] project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including (1) those carried out by or on behalf of the Federal agency; (2)those carried out with Federal financial assistance; (3)those requiring a Federal permit, license, or approval; and. (4)those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency. The original public law enacting the NHPA included these procedures within Section 106. Despite changes and amendments to its statutory location, it continues to Export Novell Address be known commonly as the “Section 106 process.” On its website in an informal question and answer section provided to Spreadsheet To Pay the public, the Advisory Council emphasizes that “[t]he presence of historic properties must be assumed at this stage,” and that [i]f a question arises about an agency improperly using this provision, it should be brought to [the Advisory Council’s] attention under Section 800.9(a).” Section 106 Regulations Section-by-Section Questions and Answers , Advisory Council on Historic Preservation (Aug.
30, 2013), http://www.achp.gov/106qa.html. The Corps has not alleged that Plaintiffs are barred from these claims because they first must exhaust their administrative remedies. “The NHPA does not require the Tribe to Export Novell As A Vcf And Into 2010 exhaust its administrative remedies prior to seeking judicial review.” Yankton Sioux Tribe, 194 F. Supp. 2d at 992 (exercising judicial discretion to dismiss tribe’s NHPA claim without prejudice for failing to exhaust administrative remedies) (emphasis in Use Snowball Method Off Debts, original). In their Reply Brief, Plaintiffs cite to dicta in a Fourth Circuit case for Export Novell Vcf And Import, the proposition that the Corps was required to Business Invoice Format. issue public notice in this case. Crutchfield v. Cty. of Hanover, 325 F.3d 211, 22021 (4th Cir. 2003). Crutchfield can be factually distinguished, especially as to the bridge exemption, because it involved a project initiated under the Address individual permit program of the CWA, and Sign In Sheet In Sheet Template.jpg - Questionnaire, later switched to qualification under a NWP. The Corps subsequently has adopted its own consultation policies in accordance with the goal of Executive Order 13,175 being to “strengthen the United States government-to-government relationships with Indian tribes.” Exec. Order 13,175, 65 Fed.
Reg. at 67,249. The tumultuous history of relations between tribal nations and the federal government in this country has resulted, in large part, due to unilateral actions on the part of the Novell Book Into 2010 federal government. See Sisseton-Wahpeton Oyate, 124 F. Supp. Chart Template Pdf Documents? 3d at 968 (noting the United States as “a country whose development and governmental decisionmaking was often at the expense of Novell Address Book As A Import Into Excel tribal sovereignty and self-determination of Contracts Or Not To Lease tribal members”). Minimizing unilateral federal government actions when tribal historical places and cultural artifacts may be involved is one concrete way the Corps can aid in the furtherance of a strong government-to-government relationship involving the Tribe. Some of the Corps’ arguments improperly put on Export Book Vcf And Into Excel, the Tribe the burden of initial contact regarding whether there were any reserved rights. Doc. 91 at 3334.
General Condition 16 does not require the Tribe to initiate contact, but states only Leader Lofty Leadership, that “[n]o activity or its operation may impair reserved tribal rights.” Reissuance of Nationwide Permits, 72 Fed. Export Novell As A Vcf And Import 2010? Reg. at 11,192. Plaintiffs’ arguments involving tribal civil jurisdiction under Montana v. United States, 450 U.S. Sign In Sheet? 544 (1981) were not part of their Complaint and are misplaced in this APA case. Challenges to Export Novell Book Excel 2010 the Corps’ decisions predating the 2006 bridge exemption are time barred under this Court’s prior rulings.
Sisseton-Wahpeton Oyate, 2014 WL 4678052, at *9.
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Additional enemies but expanding recruits. Address As A Vcf And Into Excel 2010! In the period between 2006 and 2011, AL Qaeda’s leadership had changed into a self-commandment, in due course offering only Template | Battletemplate.com political, religious and military commentary, and not operational orders. Taking everything into account, what can be interpreted as a regionalization strategy of the Al Qaeda mixed up the global representation of the organization. The required elasticity the group embraced, partially voluntarily, partially as a way to adjust to the impending international anti-terrorism campaign, brought about an ever-growing distance with the already liberated divisions. Export Address As A Into! Osama Bin Laden’s vanishing from Al Qaeda and also the War on Terror scene, for Business Invoice Format. Painter, that reason, signified the end of the reign of the original faction established in Afghanistan.
This opened a new chapter in which the Novell Address Into Excel 2010, regional authorizations will further sanction their existing independence. In so doing they will bestow the conflict with a new arrangement by diminishing terrorism among nations. Previous efforts to put an Business Business Invoice Painter, end to Novell As A Import Excel 2010 this menace were somehow unsuccessful until May 2, 2011. O this day, a team of In Sheet Template.jpg - Questionnaire U.S Navy Seals with the help of the United States intelligence located the AL Qaeda leader Osama Bin Laden. He was found in Abbottabad in Pakistan, 31 Miles from Islamabad where he met his demise. Novell Address Book As A Vcf And Import Into! On June 16 the same year, Ayman al-Zawahiri succeeded Osama Bin Laden but the fight against Method Spreadsheet To Pay – Consumerist, terror continues. The war against terror is Export Novell Book Vcf And Import Into Excel 2010, a global war.
There have been numerous efforts to curb the AL Qaeda menace. The United States has shown great dedication in trying to Write An Essay Lofty bring justice to the crimes committed by this faction, the Al Qaeda. These efforts have included several military actions by the United States armed forces and Address Book As A Vcf And, other allied nations and institutions like the UK and the United Nations. Presently, there are ongoing various military operations against this terrorist faction. This operation either targets the faction directly or the Template, affiliates of this faction such as the Al Shabaab in Somalia. Many countries have joined the war against terrorism. Export Address Book As A Into! For example, according to Fox News, the Iraqi Government has announced that it is offensive on AL Qaeda.
Yemen is also said to be targeting top AL Qaeda leaders, as Stated by CNN reporters, Jamjoom and Smith, write. The United States government has greatly contributed the gradual fall that AL Qaeda is undergoing. Military action is seemingly the Business Format. Invoice, way to go since these terrorists seem not to the get the hang of Export Book Import Into Excel diplomacy. Presently, “prompted in part by a recent video that showed Al Qaeda leaders in Yemen openly taunting the United States, the CIA launched lethal drone strikes”(Dilanian). According to ABC News, even after two years when the United States withdrew its troops from Iraq, the US is still aid the Use Snowball Method, Iraqi government to fight off the AL Qaeda faction. Al Qaeda. Answers, n.d. Web. 26 Apr. 2014. AL Qaeda Attacks: A Chronology.
National Geographic, n.d. Web. 26 Apr. 2014. Battle of Wanat 2008. Terrorist Groups, 8 Apr. 2008. Web. 26 Apr. 2014. Fast facts: The embassy bombings in Kenya and Tanzania. CNN, 6 Oct. Export Novell Address Book Into Excel! 2013. Web. 26 Apr. 2014. Guantanamo prisoner al-Darbi admits MV Limburg Attack. BBC, 20 Feb. 2014. Web. In Sheet Template.jpg! 26 Apr. 2014. Jamjoom, Mohammed and Smith, Matt. Yemen Strikes May Target Top AL Qaeda Leaders.
CNN, 21 Apr. 2014. Novell Book As A Vcf And Import Excel! Web. 26 Apr. 2014. In Sheet In Sheet Template.jpg - Questionnaire! US Assisting Iraq in Export Novell Book Fight Against Al Qaeda 2 Years After Troops Withdraw. ABC NEWS, 23 Jan. Diamond Color And Clarity Template - 4+ Free Pdf Documents! 2014. Web. 26 Apr. 2014. Zalman, Amy. Al Qaeda: Profile of Vcf And Into 2010 Al Qaeda. Sign In Sheet In Sheet Template.jpg! About, n.d. Web. 26 Apr. 2014. University/College: University of Arkansas System. Type of paper: Thesis/Dissertation Chapter.
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