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

CourtU.S. District Court — Eastern District of Wisconsin
Writing for the CourtWILLIAM C. GRIESBACH
Citation891 F.Supp.2d 1058
PartiesONEIDA TRIBE OF INDIANS OF WISCONSIN, Plaintiff, v. VILLAGE OF HOBART, WISCONSIN, Defendant/Third–Party Plaintiff, v. United States of America, United States Department of Justice, United States Department of the Interior, and Kenneth Salazar, Secretary, United States Department of the Interior, Third–Party Defendants.
Docket NumberCase No. 10–C–137.
Decision Date05 September 2012

891 F.Supp.2d 1058

ONEIDA TRIBE OF INDIANS OF WISCONSIN, Plaintiff,
v.
VILLAGE OF HOBART, WISCONSIN, Defendant/Third–Party Plaintiff,
v.
United States of America, United States Department of Justice, United States Department of the Interior, and Kenneth Salazar, Secretary, United States Department of the Interior, Third–Party Defendants.

Case No. 10–C–137.

United States District Court,
E.D. Wisconsin.

Sept. 5, 2012.


[891 F.Supp.2d 1059]


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/Third–Party Plaintiff.


Amy S. Tryon, Joshua M. Levin, United States Department of Justice, Washington, DC, Christian R. Larsen, United States Department of Justice, Milwaukee, WI, for Third–Party Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION TO DISMISS

WILLIAM C. GRIESBACH, District Judge.

This case represents another battle in the ongoing conflict between the Oneida Tribe of Indians of Wisconsin and the Village of Hobart over the regulatory control of the land situated within their common boundaries. Plaintiff Oneida Tribe of Indians of Wisconsin (the Tribe) filed this action on February 19, 2010, seeking a declaratory judgment that the Village of Hobart (the Village) lacks authority to impose charges under its Storm Water Management Utility Ordinance on parcels of land held in trust by the United States for the Tribe located on the Oneida Reservation and within Hobart (subject trust lands). The Tribe also seeks injunctive relief enjoining the Village from attempting to enforce its Ordinance upon tribal lands. (Compl., ECF No. 1.) There is no question that the Tribe is the beneficial owner of the subject trust lands. The case is before me now on the Tribe's motion for summary judgment. The Tribe moves for summary judgment on two claims for relief: first, that the charges imposed on its trust property under the Village's Storm Water Management Utility Ordinance (the Ordinance) constitute an impermissible tax on the subject trust lands; and second,

[891 F.Supp.2d 1060]

that federal common and statutory law preempt application of the Ordinance on the subject trust lands, whether or not it constitutes a tax.1 (Tribe's Br. in Supp., ECF No. 48 at 1–2.)

The Village denies that the Tribe is entitled to such relief, but in the alternative, if the Tribe is not responsible for the utility charges, the Village claims that the United States must pay. Thus, in July 2010, the Village filed a third-party complaint against the United States, alleging that the United States, as holder of the bare title to the tribal trust lands, must pay the storm water fees if the Tribe is not responsible for doing so. (Third Pty. Compl., ECF No. 15.) This Court dismissed the third-party complaint, holding that the Village had failed to state a claim under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706, because there had been no final agency action. (April 18, 2011 Order, 787 F.Supp.2d 882 (E.D.Wis.2011), ECF No. 34.) The Village then presented the Department of the Interior with a request for payment of $237,862.06 in storm water fees, which the Department denied by letter dated October 20, 2011. (ECF No. 40–1.) Having thus obtained the final agency action required for a suit under the APA, the Village has renewed its third-party claims against the United States. (Am. Third Pty. Compl., ECF No. 43.) The Village seeks a declaratory judgment that the United States must pay “all past and future storm water related fees” and a monetary judgment “for all fees currently due and owing.” ( Id. at 16.) The Village also seeks declaratory and injunctive relief affirming the Village's jurisdiction to impose its Storm Water Management Utility charges on Indian trust land and preventing the United States from invoking a federal regulation, 25 C.F.R. § 1.4, which exempts trust land from state and local property laws. Id. In response, the United States filed a motion to dismiss the Amended Third Party Complaint for lack of subject matter jurisdiction or failure to state a claim upon which relief can be granted. (Mot. to Dismiss, ECF No. 53.)

Both motions have been fully briefed and argued by the parties. For the reasons discussed herein, the Court concludes that the Village's Storm Water Utility Management charges constitute an impermissible tax on Tribal trust property for which neither the Tribe nor the United States are liable. Accordingly, the motions of the Tribe and the United States will be granted.

BACKGROUND

The Tribe is a federally recognized Indian tribe in possession of the Oneida Reservation, set aside by treaty in 1838. (Treaty with the Oneida, 7 Stat. 566.) The Tribe adopted a Constitution under the Indian Reorganization Act (IRA), which authorizes tribes to organize and authorizes the Secretary of the Interior to acquire and hold land in trust for tribes. 25 U.S.C. §§ 465 and 476. On December 21, 1936, the Secretary of the Interior approved the Tribe's IRA Constitution. (Webster Aff., ECF No. 49 ¶ 3.) The Tribe is located on the Oneida Reservation in Wisconsin, which was established by the 1838 Treaty with the Oneida. The Reservation once encompassed 64,000 acres of tribal land; all or almost all of that land

[891 F.Supp.2d 1061]

was allotted and fell out of Tribal ownership between 1889 and 1934. Oneida Tribe of Indians of Wisc. v. Village of Hobart, 542 F.Supp.2d 908, 910–12 (E.D.Wis.2008). Following passage of the IRA, and particularly since the dramatic increase in revenue the Tribe achieved after the enactment of the Indian Gaming Regulatory Act in 1988, the Tribe has been reacquiring land within the original reservation, some of which has been taken back into trust for the benefit of the Tribe by the Secretary of Interior.

Today, the United States holds in trust for the Tribe 148 parcels comprising approximately 1400 acres of land that are located within the boundaries of Hobart. (Stipulation of Facts, ECF No. 50, ¶¶ 4, 5.) The Tribe also owns land in fee within the Reservation, but that land is not the subject of this action. The subject trust lands include, among others, the following parcels, as identified in the county tax records: HB–1295, the site of the Oneida Police Department; HB–97, the site of the Oneida Community Health Center; HB–1317, the site of the Tribe's Oneida Elder Services Complex and the Tribe's Airport Road Child Care; HB–753, the site of the Oneida Cultural Heritage Department; HB–753–2, the site of the Tribe's Oneida Language House; HB–753–2 and HB–746, the site of a tribal, five-acre storm water retention pond known as Osnusha Lake; and HB–1313–1, the site of the Tribe's community building known as Parish Hall. (Webster Aff., ¶¶ 18–24.) Parcels held in trust also include an auto body shop, a park and a library. (Tribe's Resp. To Village Statement of Additional Facts, ECF No. 65, ¶¶ 26–37.) The parcels at issue are not contiguous, but rather are interspersed throughout Hobart in a kind of checkerboard pattern.

The Town of Hobart (now the Village) was created by the state legislature in 1903 and lies wholly within the exterior boundaries of the Reservation. Oneida Tribe, 542 F.Supp.2d at 912. In 2002, the Village incorporated under Wisconsin law, granting it additional authority under State law. Id. at 913. According to the United States Census Bureau, the estimated 2011 population for the Village was 6,254, approximately 17.5% of which were Native American. http:// quickfacts. census. gov/ qfd/ states/ 55/ 5535150. html (last visited September 1, 2012). The Village is adjacent to the City of Green Bay and the Village of Ashwaubenon.

In 2007, Hobart adopted its Storm Water Management Utility Ordinance in accordance with the Clean Water Act (the CWA). Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). As an operator of a Municipal Separate Storm Sewer System (MS4), Hobart is required to “develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants from [the] MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act.” 40 C.F.R. § 122.34(a).

The Ordinance identifies its purpose as protecting the general public welfare: “The Village of Hobart finds that the management of storm water and other surface water discharges within and beyond its borders is a matter that affects the public health, safety, and welfare of the Village, its citizens, businesses, and others in the surrounding area.” Village of Hobart Code of Ordinances § 4.501(1). To accomplish this purpose, the Ordinance creates a storm water management utility, which is placed under the supervision of Hobart's legislative body, the Board. Id. § 4.502(1) and (2). The Ordinance authorizes the Village through the Storm Water

[891 F.Supp.2d 1062]

Management Utility to “acquire, construct, lease, own, and operate ... such facilities as are deemed by the Village to be proper and reasonably necessary for a system of storm and surface water management,” including “surface and underground drainage facilities, sewers, watercourses, retaining walls and ponds and such other facilities as will support a storm water management system.” Id. § 4.503(1). The Ordinance also authorizes the Village through the Storm Water Management Utility to “establish such rates and charges as are necessary to finance planning, design construction, maintenance, administration, and operation of the facilities in accordance with the procedures set forth in this ordinance.” Id. § 4.503(2).

Two basic types of “charges” are authorized under the Ordinance. First, a “base charge” is imposed on all developed property “to reflect the fact that all developed properties benefit from storm water...

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1 practice notes
  • In re Peete, 21-23863-beh
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Eastern District of Wisconsin
    • June 30, 2022
    ...the functional analysis of Reorganized CF & I Fabricators. See also Oneida Tribe of Indians of Wisconsin v. Vill. of Hobart, Wis., 891 F.Supp.2d 1058, 1064 (E.D. Wis. 2012), aff'd sub nom. Oneida Tribe of Indians of Wis. v. Vill. of Hobart, Wis., 732 F.3d 837 (7th Cir. 2013) (citing Carpent......
1 cases
  • In re Peete, 21-23863-beh
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Eastern District of Wisconsin
    • June 30, 2022
    ...the functional analysis of Reorganized CF & I Fabricators. See also Oneida Tribe of Indians of Wisconsin v. Vill. of Hobart, Wis., 891 F.Supp.2d 1058, 1064 (E.D. Wis. 2012), aff'd sub nom. Oneida Tribe of Indians of Wis. v. Vill. of Hobart, Wis., 732 F.3d 837 (7th Cir. 2013) (citing Carpent......

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