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Indian Nations Law Update - April 2014

April 11, 2014

Wisconsin Appellate Court Reverses Green Bay’s Cancellation of Oneida Corporation’s Waste-to-Energy Project

In Oneida Seven Generations Corporation v. City of Green Bay (WI App. 2014), Oneida Seven Generations Corporation (OSG), a wholly owned subsidiary of the Oneida Tribe of Wisconsin, had obtained a conditional use permit (CUP) and building permit to build and operate a waste-to-energy facility on fee land in an industrial area of the City of Green Bay (City). The facility would convert municipal solid waste and other waste materials to energy by pyrolysis, a process that involves heating waste to very high temperatures in a sealed, oxygen-free chamber until chemical decomposition produces a clean-burning synthetic gas. OSG’s financing package included a $5.2 million US Department of Energy grant, loans and grants from the Wisconsin Department of Commerce and a $21.7 million loan guaranteed by the Department of Interior’s Indian Loan Guaranty program.

After the City Council (City) had approved the CUP, project opponents erroneously asserted that the project involved incineration of waste materials and complained that OSG had misrepresented certain project features. The City directed its Plan Commission to review the complaints. The Plan Commission held a hearing and reported unanimously OSG had made no misrepresentations. The City ignored the Plan Commission and revoked the CUP.

OSG, represented by Godfrey & Kahn, challenged the revocation by filing a certiorari action in state court. On March 25, in a strongly worded decision, the Wisconsin Court of Appeals reversed, holding that the City had abused its discretion when it revoked the CUP: "Fickle and inconstant fairly describe the City’s action here. … We are disappointed the City did not so much as mention the Plan Commission’s conclusions in its decision. … Even more dismaying than the City’s failure to mention the findings of its own Plan Commission, though, is its failure to articulate any rationale for its revocation decision. The City generically stated that Cornelius had made ‘false statements’ while responding to questions and concerns about ‘the public safety and health aspect of the Project and the Project’s impact upon the City’s environment.’ The City claimed these misrepresentations were made by Seven Generations representatives while answering questions about ‘emissions, chemicals, and hazardous materials.’ But none of these findings identify the supposedly false statements with any specificity."

Godfrey & Kahn to Present on Clean Air Act, May 12, in Cabazon, California

Godfrey & Kahn’s Environment & Energy Strategies Practice Group leader John Clancy will speak May 12 at LSI’s Tribal Environmental Protection seminar at the Morongo Casino Resort & Spa in Cabazon, California. John will discuss Clean Air Act issues of greatest importance to tribes, including Environmental Protection Act’s (EPA) recent minor source review regulations and relating guidance, major source permits and opportunities for tribes to use federal environmental laws to protect their lands. For more information about the Cabazon conference, click here.

Godfrey & Kahn works extensively with tribes to maximize environmental protection of tribal communities through adoption of water quality standards, Class 1 Clean Air Act redesignation, treatment-as-state, EPA cooperating agency status and other strategies. For more information, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com ,or John Clancy at 414.287.9256 or jclancy@gklaw.com.

Godfrey & Kahn’s 25th Annual Labor & Employment Law Seminar

Godfrey & Kahn’s Labor, Employment & Immigration Law Practice Group will present its annual Labor and Employment Law Conference in May at three locations throughout the state of Wisconsin. The seminar will include a panel discussion on the interaction of the ADA, the FMLA and worker’s compensation laws, a discussion on recent trends in work authorization compliance, as well as a presentation on navigating through disasters, workplace violence and the flu. All conferences run from 8:00 a.m. to noon. Locations and dates are:

  • Wednesday, May 7 - Milwaukee (Milwaukee Marriott West)
  • Tuesday, May 13 - Madison (Monona Terrace)
  • Thursday, May 15 - Green Bay (Lambeau Field Atrium)

The seminar, which is offered free of charge, is designed to serve the needs of executives, in-house counsel, human resource professionals and front-line supervisors. Pending approval by the Wisconsin Board of Bar Examiners, this seminar may be elegible for CLE credits.

To register or for more information, please contact Jessica Akright, Marketing & Events Coordinator at 414.287.9311 or jakright@gklaw.com.

Godfrey & Kahn to Present at Tribal Lending Conference June 19-20 in Mystic Lake, Minnesota

Godfrey & Kahn Indian Nations Practice Group leader Brian Pierson and Godfrey & Kahn Corporate Practice Group co-leader Brett Koeller will present at the Tribal Lending and Financial Institutions conference to be held June 19-20, Mystic Lake Casino Hotel in Prior Lake, MN. Brian will present on June 19 at 10:15 a.m. on “HEARTH Act and Its Impact on Leasing Tribal Lands for Commercial Activity.” The presentation will address the potential impact of the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act on commercial development and on how tribes can most effectively take advantage of the Act.

Brett will present on June 20 at 10:15 a.m. on “Venture Capital Funds: Considerations for Tribes When Investing or Acquiring Non-gaming Businesses.” Brett has extensive experience advising tribal corporations on buy- and sell-side acquisitions, debt and equity financings, and general business law issues.

For more information on Godfrey & Kahn’s experience with the HEARTH Act and business diversification strategies, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

Opportunities for Renewable Energy Discussed at Green Bay Housing Conference

The Seminole Native Learning Center (NLC) hosted a conference, “Training for Building Sustainable Communities in Indian Country” at the Oneida Radisson in Green Bay, April 1-3, 2014, drawing attendees from across Indian Country. In their presentation “Financing Renewable Energy for Tribal Housing,” Godfrey & Kahn’s Indian Nations Practice Group leader Brian Pierson and Environment & Energy Strategies Practice Group leader John Clancy described how tribes can use federal grants tax credits and other finance tools to transition from reliance on energy from coal-fired plants to solar, wind, bio and other environmentally responsible sources of energy, lowering long-term energy costs and promoting tribal energy independence.

For more information on how tribes can obtain funding to transition from reliance on energy from coal-fired power plants to clean, renewable energy, contact Brian Pierson at 414.287.9456 or bpierson@gklaw.com.

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