UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ONEIDA SEVEN GENERATIONS
CORPORATION and GREEN BAY
RENEWABLE ENERGY, LLC,
Plaintiffs,
v.

Case No. 16-CV-1700

CITY OF GREEN BAY,
Defendant.

DECISION AND ORDER GRANTING MOTION TO DISMISS

Plaintiffs Oneida Seven Generations Corporation (OSGC) and Green Bay Renewable Energy,
LLC, (GBRE) filed this action against the City of Green Bay pursuant to 42 U.S.C. § 1983 alleging
the City violated their rights to substantive and procedural due process when the Common Council
voted to revoke a conditional use permit it had granted only one year earlier. The case is before the
Court on the City’s motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules for Civil Procedure. The City also contends that the complaint fails to allege facts
showing GBRE has any interest or suffered any loss in the transaction and that OSGC lacks capacity
to sue under the laws of the Oneida Nation under which it was chartered. For these reasons, as well,
the City argues that the claims against it should be dismissed.
In deciding a motion to dismiss, the court must accept as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in favor of the pleading party.
Moranski v. General Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005). I therefore begin with a
summary of those allegations.

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 ALLEGATIONS OF THE COMPLAINT
On March 1, 2011, Plaintiff Oneida Seven Generations Corporation (OSGC) obtained a
conditional use permit (CUP) from the City of Green Bay, Wisconsin to build a facility to convert
municipal solid waste into electricity and other useful products through a process known as
pyrolysis. The facility, which was to be built on Hurlbut Street near the mouth of the Fox River, was
designed to first sort and shred municipal solid waste, and then convey the waste to the pyrolysis
unit, which would heat the waste to extremely high temperatures in an oxygen-starved environment.
The process produces “syngas,” which is chemically similar to natural gas or methane. After being
scrubbed, the syngas would then fuel three generators (large internal combustion engines) to produce
electricity. Compl. ¶¶ 2–3.
OSGC had applied for the CUP after it learned that the City was extremely interested in
development of a waste-to-energy facility within the City limits of Green Bay. Representatives of
OSGC met with staff of the City’s Economic Development and Planning Departments to select a site
which OSGC later purchased. OSGC then submitted a lengthy application in which it described the
project, addressed potential environmental impacts, and acknowledged the oversight and
enforcement responsibility that the Wisconsin Department of Natural Resources (DNR) would
exercise over its operations. City planning staff reviewed the information and issued a report to the
City’s Plan Commission which recommended granting the application. After consideration of the
staff report, a presentation by OSGC, and a public hearing on the matter, the Plan Commission
unanimously recommended that the City approve the CUP conditioned upon the facility complying
with all federal and state environmental regulations. The issue then went to the full Common
Council which held a public hearing similar to the hearing held before the Plan Commission.
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 Following the OSGC presentation and public comments, the Common Council voted ten-to-one to
approve the permit. Id. ¶¶17–31.
After the City approved the application for the CUP, OSGC spent a significant amount of
money to purchase equipment for the new facility and pursue the additional permits it needed from
the DNR, the U. S. Department of Energy and other state and local government agencies. On July
14, 2011, the Safety and Buildings Division of the Wisconsin Department of Commerce conditionally
approved OSGC’s plan, noting that the owner was “responsible for compliance with all code
requirements.” On August 3, 2011, OSGC’s detailed site plans and building plans were approved
by the City and a building permit was issued. In September 2011, the DNR issued permits and
approvals for the facility under the State’s clean air and solid waste laws. The DNR issued a formal
Environmental Analysis which concluded that approval of the facility was not a “major action” and
would not have significant environmental effects. The U.S. Department of Energy likewise
completed its Environmental Assessment and issued a “Finding of No Significant Impact.” With all
the required approvals in hand, OSGC proceeded with preparatory construction work. Id. ¶¶ 32–40.
In the meantime, citizen opposition to the project had grown more active. At an April 10,
2012 meeting of the Common Council the opposition groups accused OSGC of lying to the City in
applying for the CUP by claiming that the facility would have no smokestacks and would produce
no emissions. Responding to political pressure, the Common Council voted to hold a public hearing
regarding the CUP and to “continue further information.” Id. ¶ 44. The Council directed the Plan
Commission to hold a public hearing to “determine if the information submitted and presented to the
Plan Commission was adequate for it to make an informed decision whether or not to advance the
Seven Generation Conditional Use Permit (CUP) that was recommended.” Id. ¶ 45.
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 The meeting before the Plan Commission was held on October 3, 2012. After hearing from
all parties, including City Planning Director Rob Strong who was directly involved in reviewing the
application, the Commission concluded there had been no misrepresentation. In a report to the
Common Council, the Plan Commission stated:
Based on the information submitted and presented, the Plan Commission determines
that the information provided to the Plan Commission was not misrepresented and
that it was adequate for the Commission to make an informed decision, and
recommends that the CUP stand as is. The Commission further determines that the
information the Plan Commission received was adequate, and based upon
information then available, that the Plan Commission did understand that there were
emissions and venting as a part of the system, and therefore made sure that the Seven
Generations Corporation would need to meet the requirements of the EPA and DOE,
as well as meeting the requirements of the municipal code through a normal process
of give and take.
Id. ¶ 51.
Despite the unequivocal report from the Plan Commission, a letter from OSGC counsel that
any effort by the City to revoke the CUP would be met with a damages claim for millions of dollars,
and the advice of the City Attorney that there was no legal basis for the City to revoke the CUP, the
Common Council voted on October 16, 2012, to reject the conclusions of the Plan Committee and
to rescind the CUP previously granted to OSGC by a vote of seven to five. Two weeks later the
City Attorney sent a letter to OSGC stating that the Council had rescinded the CUP because OSGC
had made “false statements and misrepresentations” to the City “relat[ing] to the public safety and
health aspect of the Project and the Project’s impact upon the City’s environment” and regarding
“emissions, chemicals, and hazardous materials.” The letter did not identify the particular statements
that were false, however, nor did it explain the basis for the City’s determination that any statements
were false. Id. ¶¶ 55–60.

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 On November 14, 2012, OSGC requested an administrative appeal pursuant to Section 68.10
of the Wisconsin Statutes, and requested a hearing under Section 68.11. The City concluded that
the hearings already conducted substantially complied with Section 68.11, however, and summarily
denied the appeal. OSGC then commenced an action for certiorari review of the City’s decision in
the Circuit Court for Brown County, alleging that the City “had arbitrarily and capriciously rescinded
the permit based on an implied, unwritten condition; had deprived OSGC of its vested right to
develop the facility; had rescinded the permit without substantial evidence of misrepresentation; and
had acted arbitrarily and unreasonably.” Id. ¶¶ 61–63.
OSGC’s petition for certiorari was denied by the Circuit Court for Brown County. OSGC
appealed the court’s decision to the Wisconsin Court of Appeals, which reversed the Circuit Court’s
decision in a twenty-page decision issued on March 25, 2014. Notwithstanding its stated reluctance
to “interfere in such discretionary functions” as the decision to revoke a CUP, the Court of Appeals
nevertheless concluded that the City’s decision could not stand. ECF No. 1-1, ¶¶ 20, 43.
Characterizing the City’s action as “fickle and inconstant,” the Court concluded there was no basis
for the City’s finding that OSGC had made any misrepresentations to the City. The Court
emphasized that the City had not even mentioned the Plan Commission’s report or explained why
it had not adopted it, since the Plan Commission was in a much better position to determine whether
misrepresentations had been made. Given the City’s failure to identify the false statement allegedly
made by OSGC or consider the Plan Commission’s report, the Court concluded:
we cannot help but believe the City’s decision was not based on a rational analysis
of the statements [OSGC] made to the Plan Commission, but the public pressure
brought to bear on the Common Council after the CUP had been issued.

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 Id. ¶ 27. The City filed a petition for review of the Court of Appeals decision with the Wisconsin
Supreme Court, which granted the petition but also concluded, with the Chief Justice dissenting, that
the City’s action was not supported by substantial evidence and affirmed the decision of the Court
of Appeals in a decision issued on May 20, 2015. ECF No. 1-2.
Although it ultimately prevailed in the state courts, OSGC never requested reissuance of the
CUP. According to the complaint, “OSGC proposed the waste-to-energy project when it did
because of the availability of federal, state, and local grants, tax deductions and other incentives.”
Compl. ¶ 73. “Unfortunately,” the complaint alleges, “those opportunities have expired, such that
the project is no longer economically viable.” (Id.) Instead, OSGC and GBRE, the wholly owned
indirect subsidiary of OSGC which was formed for the purpose of developing the facility, filed this
lawsuit pursuant to 42 U.S.C. § 1983, in an attempt to recover $5.2 million in out-of-pocket
expenses OSCG incurred in developing the project, $16 million in profits they claim the facility
would have generated, and the attorneys’ fees incurred in the state and federal court actions to
vindicate their rights.
ANALYSIS
A. Threshold Issues
As an initial matter, the City argues that OSGC lacks the capacity to sue and that the
complaint fails to allege any facts that show the GBRE has any claim against it. The City’s lack of
capacity argument is based on OSGC’s status as a tribal corporation chartered under the laws of the
Oneida Nation, a federally recognized Indian tribe. According to the OSGC Corporate Charter, the
Charter was granted by the Oneida Business Committee under the authority vested in it by the
Oneida General Tribal Council. Under the Oneida Constitution and By-Laws, the General Tribal
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 Council is the governing body of the Oneida Nation and the Business Committee, consisting of nine
elected members, and is empowered to perform such duties as may be authorized by the General
Tribal Council.
The City contends that on December 15, 2013, the General Tribal Council voted to dissolve
OSGC. Although the Business Committee has begun the process of dissolution, it has apparently
not been completed. Nevertheless, the City argues, based upon amendments of OSGC’s corporate
charter and the tabling of a motion that would have expressly authorized OSGC to continue its
litigation against the City, that it lacks authority to bring this action. Although the same argument
applies to GBRE, a wholly owned subsidiary of OSGC, the City argues that the complaint fails to
allege that GBRE suffered any injury in fact that would give it standing to sue in any event. For
these reasons, the City argues the action should be dismissed.
Neither argument warrants dismissal at this stage of the proceedings. The City’s argument
that OSGC, and GBRE too, lack capacity to sue is predicated on facts outside the pleadings and the
attachments thereto. The City has attempted to support its argument by submitting documents
concerning internal tribal governance and affairs. OSGC challenges the City’s interpretation of the
documents and none provide unequivocal support for the City’s position. For the court to fully
consider whether OSGC and GBRE lacked capacity, it would have to convert the pending motion
to dismiss to one seeking summary judgment and, even then, the answer may not be sufficiently clear
to allow a ruling as a matter of law. I therefore decline to do so.
As for the City’s contention that the complaint fails to allege that GBRE suffered any injury
in fact, I note that the complaint refers to OSGC and GBRE collectively as OSGC. Thus, any injury
that OSGC suffered the complaint attributes to GBRE as well. More specifically, the complaint
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 alleges that GBRE was formed for the purpose of developing the facility. Given this allegation, it
is not unreasonable to infer that at least some of the development costs for and profits from the
project would have been borne by and later received by GBRE. At least at this stage, this is
sufficient to withstand a motion to dismiss.
B. Procedural Due Process
The complaint alleges that the City deprived the defendants of their right to procedural due
process. The Fourteenth Amendment provides, as relevant here, “nor shall any State deprive person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To
demonstrate a procedural due process violation of a property right, the plaintiff must establish that
there is “(1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a
denial of due process.” Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir. 2004) (citation
omitted). It is with respect to the third element of its procedural due process claim that OSGC’s
complaint fails.
To be sure, OSGC was entitled to due process. River Park, Inc. v. City of Highland Park,
23 F.3d 164, 166 (7th Cir. 1994). But this was essentially a zoning case, and “the procedures ‘due’
in zoning cases are minimal.” Id. (citing Eastlake v. Forest City Enters., Inc., 426 U.S. 668 (1976)).
“Municipalities need not use adjudicative procedures to make zoning decisions.” Coniston Corp.
v. Hoffman Estates, 844 F.2d 461, 467–68 (7th Cir.1988) (“The decision whether and what kind of
land uses to permit does not have the form of a judicial decision.”). Here, there is no dispute that
OSGC received notice and a hearing at which it was able to address the allegations that it had
misrepresented certain features of the project prior to the initial vote granting its application for the
CUP. But more importantly, the procedural protection afforded OSGC’s interest in the CUP did
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 not end with the decision of the Common Council. OSGC sought judicial review in state court via
writ of certiorari and ultimately succeeded in having the City’s decision rescinding its CUP
overturned. “A person contending that state or local regulation of the use of land has gone
overboard must repair to state court.” River Park, 23 F.3d at 167. This is because “when the claim
depends on the due process clause, state litigation may supply that process.” Id. (citing Eastlake,
426 U.S. at 679 n.13).
That is precisely what occurred here. Whatever procedural protection OSGC believes it was
denied by the City was supplied by the availability of judicial review in the state courts, which
ultimately reversed the City’s decision to rescind the previously issued CUP. The fact that the
project was no longer economically viable by the time the process was complete does not change the
result. Leaving aside the question how a project OSGC claims would have generated $16 million
in profit could have lost its economic viability in five years, OSGC successfully utilized the
procedural safeguards that were available for restricting the City’s authority to impose zoning
limitations on the use of its land. OSGC’s procedural due process claim therefore fails.
C. Substantive Due Process
The complaint also asserts a claim that the City deprived the defendants of substantive due
process. “Substantive due process is admittedly an ‘amorphous’ concept.” Bettendorf v. St. Croix
Cnty., 631 F.3d 421, 426 (7th Cir. 2011) (quoting Tun v. Whitticker, 398 F.3d 899, 900 (7th Cir.
2005)). “It is perhaps for this reason that its scope remains ‘very limited.’” Id. (citing Washington
v. Glucksberg, 521 U.S. 702 (1997)). “A government entity must have exercised its power without
reasonable justification in a manner that ‘shocks the conscience’ in order for a plaintiff to recover
on substantive due process grounds.” Id. (quoting Rochin v. California, 342 U.S. 165 (1952)).
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 In CEnergy-Glenmore Wind Farm No. 1 v. Town of Glenmore, 769 F.3d 485 (7th Cir.
2014), a wind farm developer claimed that the Town Board had deprived it of substantive due
process by delaying action on its application for building permits for the windmill structure so as to
cause the developer to lose a lucrative contract for the sale of the power the farm would have
generated. This court dismissed the claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and
the Seventh Circuit affirmed on the grounds that “the Board’s actions were not arbitrary in the
constitutional sense and because CEnergy did not seek recourse under state law as required by a long
line of cases in this circuit.” Id. at 488. On the issue of arbitrariness, the Court noted that “a
land-use decision must ‘shock the conscience’ to run afoul of the Constitution.” Id. (citing
Bettendorf, 631 F.3d at 426). The Court also noted that it had “suggested that the action must have
been ‘arbitrary and capricious’ or ‘random and irrational.’” Id. (internal citations omitted). In yet
another formulation, the Court noted that “the Supreme Court has explained that a land-use decision
must be arbitrary to the point of being ‘egregious’ to implicate substantive due process.” Id. (citing
City of Cuyahoga Falls v. Buckeye Cmty. Hope Foundation, 538 U.S. 188, 198 (2003)). Applying
the standard to the facts alleged in CEnergy’s complaint in that case, the Court held that “the
Glenmore Town Board’s decision to delay action on CEnergy’s building permit requests could not
have been arbitrary in the constitutional sense.” Id. “As far as the Constitution is concerned,” the
Court observed, “popular opposition to a proposed land development plan is a rational and legitimate
reason for a legislature to delay making a decision. See River Park, 23 F.3d at 167 (explaining that
‘the idea in zoning cases is that the due process clause permits municipalities to use political methods
to decide’).”

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 Likewise in this case, the City Council’s decision to rescind the CUP was in response to
popular opposition which developed after the permit was issued. The Council determined that
OSGC had made several misrepresentations about the project in the course of the public hearings
on its application for the CUP. According to the decision of the Wisconsin Supreme Court attached
to the complaint, the Council specifically focused on statements made by representatives of OSGC
concerning emissions from the proposed facility, smoke stacks and the successful utilization of the
same technology in other parts of the country. 2015 WI 50, ¶ 53. The majority opinion carefully
analyzed the evidence bearing on the oral representations made by OSGC’s CEO, engineer, and
project manager at the public hearing. Id. at ¶¶ 54–79. Based upon its review, the Court concluded
that “the City’s decision to rescind the conditional use permit was not based on substantial
evidence.” Id. at ¶ 81. The Court explained: “In conducting a certiorari review to determine whether
there was substantial evidence to support a decision, we consider the evidence in context.
Considering the context, we determine that based on the evidence presented, the City could not
reasonably conclude that the statements by Oneida Seven’s representative to the City government
regarding the proposed facility’s emissions and hazardous materials, its stacks, and its technology
were misrepresentations.” Id. Chief Justice Roggensack filed a dissenting opinion in which she
argued that the majority had failed to accord the City Council’s finding that OSGC had made
misleading statements. She noted that the Common Council was not making a claim for actionable
misrepresentation, but instead relied on the misleading statements as an equitable basis for rescinding
the CUP. Id. at ¶¶ 82–84, 99 (Roggensack, C.J., dissenting).
Even though the Wisconsin Supreme Court ultimately concluded that the Council’s decision
was not based on substantial evidence and could not stand, this does not mean it was arbitrary in a
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 constitutional sense. Something more than a favorable state court ruling is needed in order for a
municipal board’s decision on a zoning issue to be found to violate a property owner’s right to
substantive due process. See Harding v. County of Door, 870 F.2d 430, 432 (7th Cir. 1989)
(“Although the Wisconsin Court of Appeals ultimately determined that the Board’s interpretation
of the zoning ordinance was erroneous, this fact does not transform the Board’s rational decision
into an irrational one.”). It is noteworthy that both the trial court and the Chief Justice found
sufficient evidence to support the action taken by the City. Also of note is the fact that OSGC did
not seek an award of actual attorneys’ fees and costs pursuant to Section 895.044 of the Wisconsin
Statutes on the grounds that the City’s defense was asserted in bad faith or with intent to harass or
injure, or that the City or its attorneys knew or should have known that its position was without any
reasonable basis in law or equity.
In Eichenlaub v. Township of Indiana, town officials were alleged to have applied
subdivision requirements to the plaintiffs’ property that were not applied to other parcels, pursued
unannounced and unnecessary inspection and enforcement actions, delayed certain permits and
approvals, improperly increased tax assessments, and maligned and muzzled the plaintiffs. 385 F.3d
274, 286 (3d Cir. 2004). Noting that the complaints were typical of the kind of disagreement that
is frequent in planning disputes and that there was no allegation of corruption or self-dealing, the
court affirmed the district court’s conclusion that the “misconduct alleged here does not rise
sufficiently above that at issue in a normal zoning dispute to pass the ‘shocks the conscience test.’”
Id.
Similarly in this case, there was no allegation of corruption or self-dealing by Council
members who voted in favor of rescinding the CUP. The allegations of misrepresentation were
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 based on the arguably misleading oral statements that OSGC’s representatives made, but which a
majority of the Wisconsin Supreme Court concluded, in context and considering the written
statements and more direct involvement with the Plan Committee, did not amount to intentional
misrepresentation of a kind that justified rescinding the CUP. That the analysis of a majority of the
Council members failed to consider the entire context when confronted with angry constituents is
hardly shocking.
Finally, the fact that OSGC ultimately prevailed and could have completed the project had
it chosen to do so also makes the City Council’s decision less shocking or egregious than a
substantive due process violation requires. There is no suggestion that the City Council members
were aware that delay would essentially kill the project because it would lose whatever economic
viability it might have had. In the final analysis, the City’s action caused a delay in the project; it was
apparently a change in other factors over which the City had no control that caused OSGC to
abandon it.
CONCLUSION
For the reasons set forth above, the City’s motion to dismiss pursuant to Rule 12(b)(6) for
failure to state a claim is granted. The Clerk is directed to enter judgment accordingly.
SO ORDERED at Green Bay, Wisconsin this 6th day of June, 2017.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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