Green Bay wants Oneida Seven Generations suit dismissed

Site of the proposed Oneida Seven Generations Corporation waste-to-energy plant in Green Bay (file photo).

GREEN BAY (WLUK) -- The city of Green Bay has asked a federal judge to dismiss a lawsuit filed by the Oneida Seven Generations Corp., seeking damages from a failed waste-to-energy plant project.

In 2010, the Oneida Seven Generations Corp. (OSGC) received city permission to build a power plant fueled by municipal solid waste. However, after construction started, the City Council revoked the conditional use permit. Now, the tribal corporation is seeking to recover damages. It is seeking $5 million to recover expenses and $16 million in lost profits, plus other costs.

Instead of responding to the OSGC claims, the city's attorneys make a two-fold argument for why the case should be dismissed: the tribal company failed to exhaust its options in state court, and it doesn't make a valid due process violation claim.

On the first point, the city notes that after the Wisconsin Supreme Court ruled in May 2015 that the city improperly revoked the plant's permit, OSGC never followed up with the courts to have the court order implemented.

"OSGC cannot seek federal review of a local land-use decision without first taking full advantage of state law remedies, particularly when those remedies include a judgment that could eliminate the offending conduct if only OSGC would enforce it," the city argues in the 26-page brief.

A FOX 11 review Tuesday of court records showed no filings by either side in both the circuit court case and the appeals court since the decision was filed.

On the second point, the city argues that OSGC fails to meet the federal standards for making a due process violation claim.

"OSGC has failed to allege facts that show the City acted arbitrarily in the constitutional sense and has, therefore, failed to state a claim for a violation of substantive due process," the city argues.

The city's brief also argues that the OSGC wasn't authorized by the Oneida General Tribal Council to pursue the lawsuit.

The tribe has several weeks to respond to the city's filing, and the city gets to reply to that before any hearings would be scheduled or decision made by the judge.

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