lawsuit to challenge a road bridge project that in two thousand and nine cost harmed the water quality of enemies some lake and likely destroyed tribal culture resources and burial mounds in two thousand and ten the core issue decision denying the tribes clean water act claims for the court to regulate merlin drake who is conducting a massive undertaking of constructing and augmenting a one mile road in the lakes inlets and wetlands the road is built primarily from phil taken from the excavation of two thousand feet of lake shore drake originally represented to the corps that he was constructing the road for farming purposes but in two thousand and eight the corps was informed by drake that the road was built for a second residence and more recently drake inform the tribe that this road and the land will now be sold as lake shore lots the two thousand and ten decision reason that the road project was not subject to recapture despite the change in use did not constitute stacking and will remain unregulated under the clean water act because the corps determined that drake is a farmer the course two thousand and ten decision also deny the tribes national star preservation that claims the area is rich in cultural historical resources because enemy some lake is a part of the tribes aboriginal territory within the national story preservation act claim only a small portion of it compare that pertains to the final leg of the project where it crosses two small wetlands that drain into the lake the first two thirds of the road or about half of it which actually most of the wetland and the lake inlet in the water the the court the court did not review that and the reason why even though that was not under a motion to dismiss the district court said the two thousand and ten decision is not final agency action i'm not going to reach the whole breadth of your national struck preservation i claim the tribes complaint alleges that the corps two thousand and ten decision pertain to the clean water act and the national store preservation act as well as the course quote decisions were wrong and those reviewed are those reviewed for clearly erroneous i believe that's right the legal questions though of course is unknowable but if you read the district court opinion and i think in the third opinion it actually then clarify you've been injured that's why you're here and typically i think that's the case but the facts on the ground changed at a much later date the world changed when in two thousand and nine and maybe two thousand and eight the whole lake shore that was supposed to be used for farming it was now permit and the tribe would never be consulted under the national if you take a look at what the course testimony was to the district court they said we don't have discretion to issue a farmer exemption to developer so it was recaptured now that the key term i think is a change in use the regulation says change and use the statute talks about bringing the wetland in the water into a new activity the course testimony said change and use the two thousand and ten decisions that a change in use but more directly answer your question i think is that it is mandatory i not one of those things like well should we do it or not do the tribe knows how to bring in force and discretion questions to the court so that example when when rulon drake recently dredge over one hundred feet of cat tails and you have five or six than that this matter is you there wasn't a clean slate but even though there were prior private letter verifications the court can't put its head in the sand and all of a sudden say hey we got a change of purpose now it's residential it's residential  making this determination in the corps and do nothing about it then i'm going to flatten out all the acreage that could be used for farming you can't even farm anymore so a careful review of the tribes individual claims is very very important we do challenge the first two thousand and three exemption to termination but not for the reasons that were injured two thousand and five the only reason is and it probably is not our strongest claim but the only reason we're challenging that at the top to say you should have known two thousand and three is once we received the freedom of information act record we were able to determine that people at the e p a actually questioned it we didn't know that that wasn't discussed in january twenty fifth two thousand and five once we found that out then we said we got to challenge that too but that's a litigation decision done way down the road  most important claims are of course recapture there was never discussed in two thousand and five it's not the administrative record all before you it's not there i've looked we searched and looked the corba who we brought to the court's attention during the first consultation of which you have transcript as a general twenty fifth two thousand and five there wasn't a second application even nor a second verification is understandable that drake's project proceeded piecemeal but as of general twenty fifth two thousand and five the corps had yet to stack its private letter  ications the verifications could not indeed take into account any of the matters decided in two thousand and ten recapture stagg now the district court of the stacking addressed the merits right it didn't do that just on statute of limitations right they addressed a small picture of stacking the only look at the last leg of that and that's a really important thing for the tribe this is one row you look at two thousand and ten image that is one thing really a question ask the merits there they're a federal register publication actually says and actually i don't want to i don't want to paraphrase it wrong so let me quote it for you crossing different water bodies then it can be separate this is the same water body every single ounce of water everything on the east end there comes from at least one hundred thousand acres of farmland because drained down into this lake and that's why you have an inlet in the cree the of the other smaller wetlands that are up the north more same thing that water's not going anywhere also any some like and that's in the record presented and answered to the decision determines rights for obligations or from which legal consequences will flow as required by bennett bennett the spear the two thousand and ten decision is the reason the tribe filed this lawsuit in regard to the first decision the two thousand well for example it references our letter an argument eight times so pages two through six there is a recap in this complicated situation you have to every camp you have here's what we've done so i start where's the decision in here or do you think is the decision well ok so if you to i don't have the page number for you but for example there is an argument i think it's on page three that says you claim that this has been recaptured we do not agree and then it went on to explain why now as federal courts do you want the tribe to bring just a unlawful failure to act claiming that sect didn't say anything there is no consideration but they did consider things that they previously told you that they were going to recapture before this two thousand and ten no that's an issue unique to the tribe and unique to the try raising of the first time to two to the core you say that the two thousand and ten letters the first time they are on page three in that paragraph that they made a decision on recapture with one hundred percent certainty your honor ye to still use them and under that we only do the permit area there's no permit here is exempt sorry you're out of luck there's no other letter in the record that says that now i got confused here i don't think it was in your briefs ok but the letter at the end says that  tribal rights are not affected by need if this is what they say you know i'm talking about the general condition where they're saying if there's any trouble or rights affected us please let us know and so that is our general condition but another general condition is number twenty for example as he explains as one project is one project and the legal niceties don't work you can try to say oh you're crossing separate water bodies but you're not under their own federal register publication they're crossing the same water that goes into  way well tell me about this in the federal regulations says for a linear project crossing a single water body that's what you're saying several times that separate and distinct locations each crossing is a single project the letter is not a decision it is not announce a new exemption it does not grant or deny a permit it response to the tribes concerns explains the state of of what has passed it recounts what is going on and and says it's willing to continue to work with what about the middle paragraph on page three that he referred to turn three times and i finally found it but we have sounds like a decision you contend that the activities  must be recaptured we cannot agree we've carefully considered nor do we find we've assessed we've done this that that paragraph sounds like agencies right decisions to two responses to that first when the agency responds to legal argument like this and this is very similar the center for auto safety independent equipment dealers the eighteenth the case all from the d c circuit that we cite when the exe is asked a legal question and gives an answer here is the legal answer to that question that doesn't establish under bennett riskier the required consequence to terminate or determination is that it's a church a legal statement but it alone is not a consequence or determination that affects the tribes rights or in this case m the second point is this falls in the category of enforcement discretion they're coming to the core saying you need to do x y z to enforce the clean water act against drake relating to these prior farm road exemption decisions two thousand three and two thousand and six under heckler versus cheney in this case this court's decision in missouri coalition that is trying to make the court take an action that is not a mandatory duty rather's discretionary it's the quintessential enforcement discretion of those findings were not erroneous in any way so what injury had the tribe suffered in january of two thousand and five well the injury they would have would have suffered as of two thousand and five years is their legal claim that the first farm road exemption was was deficient and it's the extent the only injury they they describe it addition to that that there's a defective not initial farm road exemption is that the use changed later but that falls into that same enforcement screw to problem if if if the course decision two thousand and three was was far and because he described in our cultural use he's going to use it for cattle movement on his on his property it doesn't then become defective when he changes the use the question is just the two thousand and three decision the question then is this the core in force or not and that's a discretionary poor decision wouldn't the tribe have to be harmed by the failure in other words you know that the granting of an exemption alone a they may have known that that happened but when they also had to been harmed by well the other other part of the just records finding i think is that they were oh they had already heard at that point and they heard the january two thousand and five meeting testimony not testimony but discussion from drake's neighborhood that he was using this for development purposes and so that's their theory and so that is part of the january two thousand and five meaning to tribal representatives are they are in the tribe was an organ that they were representing the tribes there's a problem with out there to saying it didn't come up and they don't have a concrete enough injury but the the whole theory that they bring this district court rejected out for factual reasons as well and if nothing else by two thousand and ten before the statue intentions are run they had this letter from the corps and so at that point even on their theory they had everything they complaint we're not claiming that is the work we're taking the initial complaint date has the date they filed there were changes in the complaint but no non material to this documentations issue you know you mentioned equitable there was trying to clear up some confusion about what happened in two thousand and six and two thousand and nine two thousand and six there's another farm road exemption we're not arguing specializations with that their argument with respect to that is is focused on  regulations and the advisory council regulations isn't implicated here because we're arguing now under the advisory councils definition and we're saying it's on an undertaking with respect to two thousand and nine the n h p a process has been reminded to the core so the nation my permit is not properly before this court the court will the core has to first assign decide the first prong it is your court identified which is is the type of action that could trigger an impact if you decide that it is then has to go through the concentrate ta road exemption this is the point in time when drake's application said you know i was in two thousand and eight and leaving the two thousand and nine this isn't for agricultural purposes this is for a new development of a home on the north side stacking now i'm very confused you heard my exchange with your opponent there i'm very confused about what your your federal register regulation really sa about what is a single crossing of water which is a single project can you help me on that yes nationwide permit fourteen is the one that was applied in two thousand and nine just i want to know  don't think this is properly before the court because of the remainder shoe but answer your question nationwide permit fourteen was the one the core applied and in the federal that's four linear transportation projects and i think your honor quoted regulation properly for that which is not that everything on a single water body has to be part of a single project analysis but rather is it at the same location is part one and we think well sure these are all on the same part of awake the roads that issue in two thousand and three and then in two thousand and nine the gully crossing are not the same place there are different locations we've got little arrows in our brief on page six that point to the two thousand and nine go across ing and the two thousand and three road exemption decision so we're going out there but there are brief we've tried it out if i would wear those different locations are and you know what what you're what you're posing council was telling me that i don't have in front of me he says there's a later provision the federal register that regional differently i think that's a different nationwide permit and i think our brief explains that i don't think it's nationwide permit fourteen and if if if it is really different from fourteen it's the it's the first part and not a lot of part is the part about first deciding like is it on the same water body with a linear transportation project turns on location and not every linear every part of a project impacting a single water body must be must be considered simultaneously thank you in the only other point i want to make about when your transportation projects is the idea of utility which we explain our brief as well and a trial i don't think has is rebutted that the two thousand and three and two thousand and six farm road exemption decisions they provide agricultural purposes two thousand and nine thing was for this additional ho hum the purposes are different they are independent you can build the gullah crossing to build the second the second home you can improve the movement of your cattle those are not the same utility and or purpose so less the court has any further questions we request that you affirm the nation my permanent issues all the time is are finally agency actions in regard to the project if this court is going to look at it through the eyes of final agency actual you have an application and then you have a private let verification that's not share with anybody that paper abuse is probably going to lead you just to one result if you will consider the facts on the crown that injured the tribe in two thousand and nine when you have bulldozers lovely now two thousand feet a lake shore we discover at that time this information it's one project as one project as a matter of fact the applicant is describing as one project the corps has never explained how you can use a bridge in the middle of the wetland all by itself has independent utility it does not you have to take a look at our claims and the facts on the ground at a later date it's not enforcement discretion they didn't appeal that we had prevailed on the statute of limitations do you make an equitable newspaper before that when they called they said yeah we had information a change the intent is for a second residence well they never told the tribe that tell the truth beyond their own core policy as a consultation guideline it says to be open to be truthful to have dialogue and to to lead to deliberate together that just didn't occur here that sort of lack of consultation the lack of honesty should not be rewarded in the in that context of an equitable will be submitted and decided in due course