Hobart Groundwater Claim Washed Down the Drain

By Dawn Walschinski - Kalihwisaks (dwalschi@oneidanation.org) 

@Dwalschi_Kali 

 Village of Hobart 

The United States Court of Appeals for the Seventh Circuit sided with the Oneida Tribe in its lengthy legal battle over storm water with the Village of Hobart. The decision issued October 18 agreed with Judge William Griesbach’s decision in the United States District Court from September, 2012. The decision re-affirms that the Village of Hobart lacks the authority to impose storm water charges on lands held in trust for the Oneida Tribe. 

In 2007, Hobart began imposing storm water charges against the Tribe’s trust property and threatened foreclosure of the land if the Tribe did not make payments. In order to protect the Tribe’s land, the Tribe filed a lawsuit challenging Hobart’s authority to impose storm water management charges on the Tribe’s trust property. Hobart then filed a claim against the United States asking the United States to pay the charges, in the event the judge found the tribe not liable for payment. The United States refused.

Deputy Chief Council for Oneida James Bittorf stated that Hobart’s argument that it was the regulator of Oneida’s land held in federal trust was upside down. 

“Under the Clean Water Act Hobart is a regulated entity, they’re not a regulator, and Hobart was trying to put itself in the position of regulating the tribe simply because they got a (draft) permit from the EPA (Environmental Protection Agency),” said Bittorf. 

Seven Circuit Judge Richard A. Posner raised questions about the relationship between the Oneida Tribe and the Village of Hobart at the September 18, 2013 hearing in Chicago. 

“Hobart doesn’t seem to like Indians,” said Hon. Posner who referred to a letter sent to village residents by Hobart Village President Rich Heidel that was critical of a candidate for the Hobart Board of Trustees because he was married to a member of the Oneida Business Committee (OBC). 

“The attitude is to preserve Hobart’s jurisdiction,” countered Hobart’s attorney Frank W. Kowalkowski. 

“From my perspective, the court wasn’t buying Hobart’s arguments, and I think maybe the justices on the court of appeals were exploring other motivations for Hobart presenting these arguments because I don’t think they thought the arguments had any merit, and maybe they were wondering why are these arguments being presented,” said Bittorf. 

According to Bittorf, the Village of Hobart could ask for a rehearing from the Seventh Circuit, or go to the US Supreme Court. Hobart could also object to Oneida’s draft EPA storm water permits. OBC Chairman Ed Delgado stated in a press release that he would prefer the village and tribe work together.

“It is unfortunate that we had to turn to the courts again to settle this issue. This becomes a costly venue for both governments. According to the decision, “it (Village of Hobart) doesn’t deny the feasibility of cooperative arrangements between it and the Tribe, which has signed cooperative service agreements with other government bodies in the area.” Oneida has successfully entered into other inter-governmental service agreements to settle these types of matters and we again extend our invitation to the Village in entering into a service agreement with us.

“Let’s cooperate, not litigate. The expense of this litigation to Hobart taxpayers and Tribal members has become too costly in a time of scarce resources. Let’s take the resolution of this issue as a sign that we should move forward in a positive manner. The Tribe is pleased with the outcome and hope future litigation can be avoided.” 

Hobart Board of Trustees President Rich Heidel stated the board hadn’t yet met to discuss the ruling and declined to comment at this time.