Oneida Tribe of Indians of Wis. v. Vill. of Hobart, Case No. 10–C–137.

• Court: United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
• Writing for the Court: DECISION AND ORDER
• Citation: 787 F.Supp.2d 882
• Parties: ONEIDA TRIBE OF INDIANS OF WISCONSIN, Plaintiff,v.VILLAGE OF HOBART, Defendant.
• Decision Date: 18 April 2011
• Docket Number: Case No. 10–C–137.

787 F.Supp.2d 882

ONEIDA TRIBE OF INDIANS OF WISCONSIN, Plaintiff,
v.
VILLAGE OF HOBART, Defendant.

Case No. 10–C–137.

United States District Court, E.D. Wisconsin.

April 18, 2011.

[787 F.Supp.2d 883]

Arlinda F. Locklear, Arlinda F. Locklear, Esquire, Washington, DC, James R. Bittorf, Rebecca M. Webster, Oneida Law Office, Oneida, WI, for Plaintiff.Frank W. Kowalkowski, Davis & Kuelthau SC, Green Bay, WI, for Defendant.DECISION AND ORDER WILLIAM C. GRIESBACH, District Judge.

In this action, Plaintiff Oneida Tribe of Indians of Wisconsin seeks declaratory and injunctive relief precluding the Village of Hobart from assessing a utility fee for land in the Village owned by the United States and held in trust for the Tribe. The Village filed a third-party complaint against the United States, including the United States Department of Interior and its Secretary Kenneth Salazar, in which it alleges that the Clean Water Act requires the United States to pay the Village's storm water fees to the extent the Oneida are not liable for such fees. The complaint also argues that a federal regulation exempting tribal trust land from property laws is illegal under the Administrative Procedure Act (APA) and provisions of the Constitution. Presently before me is the motion to dismiss filed by the United States in which the government argues that the Village's claims are barred by sovereign immunity. The Government further argues that any claims under the APA are not ripe because the Village has not appealed the decision of a Bureau of Indian Affairs official that it now challenges. For the reasons given below, the motion to dismiss will be granted.

In 2007 the Village of Hobart began enforcing a village ordinance that imposes a storm water run-off fee on property located within the Village. The Village states that it was forced by federal law to charge such fees in an effort to abate pollution. Within the Village, the United States owns roughly 1420 acres of land, which it holds in trust for the Tribe. The Village ordinance applies to both the Tribe's trust land as well as the land the Tribe owned in fee. The Tribe contested these charges but ultimately paid the money it was charged for its trust land into an escrow account subject to further proceedings to determine the legitimacy of the water charges. (Charges for the Tribe's fee land are not at issue here.) The Tribe applied to the Bureau of Indian Affairs for relief, and the regional director agreed with the Tribe. He deemed the fee an improper tax, directed the Village to remove

[787 F.Supp.2d 884]

the Tribe's trust property from the tax certificate list, and ordered the Village to cease any efforts to collect the fee. (Compl., Ex. D.) In its third-party complaint, the Village asserts that the government is liable for any fees for which the Tribe is not liable. It also seeks review of the BIA's determination that the storm water fees levied on tribal trust land are an improper tax.I. Section 313 of the Clean Water Act

The Village's third-party complaint alleges that if the Tribe is not liable for payment of the fees, then the United States is. Citing § 313 of the Clean Water Act, 33 U.S.C. § 1323(a), the Village argues that the federal government is subject to all local water quality regulations, including service charges. It further argues that § 313 provides a waiver of the government's sovereign immunity. Section 313 provides as follows:

(a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law.

33 U.S.C. § 1323(a) (emphasis added).

In a nutshell, the statute provides that if an agency of the federal government is engaged in discharge of pollutants, or if it owns a property, it must comply with all local and state laws and regulations involving abatement of water pollution. This includes “the payment of reasonable service charges.” Id. Section 1323(a) requires federal agencies to comply with state and local water-quality requirements “in the same manner, and to the same extent as any nongovernmental entity.” “Congress intended this section to ensure that federal agencies were required to ‘meet all [water pollution] control requirements as if they were private citizens.’ ” Center For Native Ecosystems v. Cables, 509 F.3d 1310, 1332 (10th Cir.2007) (citation omitted).

The United States argues, however, that the Village has no authority to impose fees on tribal trust land, and thus § 313 and its waiver of sovereign immunity do not apply. The government concedes that § 313 allows recovery of service charges, but it argues such charges must have been validly imposed by the Village before the United States must pay them. Because the Village has no authority to impose fees on trust land, the government argues that it has not waived its sovereign immunity under § 313.

The Village protests that the government is using circular logic: after all, the question of the Village's authority to impose fees on tribal land is the crux of its

[787 F.Supp.2d 885]

case, so the government's immunity argument begs the question. That is, in the Village's view, the government...