Message-ID: <20869426.1075845908172.JavaMail.evans@thyme> Date: Fri, 18 May 2001 06:05:00 -0700 (PDT) From: carlos.sole@enron.com To: mathew.gimble@enron.com Subject: Re: Seminole Indian Tribe Project Cc: bruce.golden@enron.com, mitch.robinson@enron.com, marchris.robinson@enron.com, kay.mann@enron.com, david.fairley@enron.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Bcc: bruce.golden@enron.com, mitch.robinson@enron.com, marchris.robinson@enron.com, kay.mann@enron.com, david.fairley@enron.com X-From: Carlos Sole X-To: Mathew Gimble X-cc: Bruce Golden, Mitch Robinson, Marchris Robinson, kay.mann@enron.com, David Fairley X-bcc: X-Folder: \Kay_Mann_June2001_3\Notes Folders\Notes inbox X-Origin: MANN-K X-FileName: kmann.nsf Mathew, Per our conversation yesterday, I would reiterate the importance of a team meeting on our potential project with the Seminoles given that there will be a lot of complex legal structuring required for the project in addition to all of the commercial structuring that you are still evaluating. As a general rule, you should know that under federal law, Indian tribes are legally treated as sovereign nations and so they are immune from regulation by a state government and immune from federal and state court jurisdiction unless they consent to it. They are entitled to establish their own governing laws and regulations and are subject to very unique federal law requirements. To illustrate, with respect to our potential project with them it means we will need to address such issues as: (1) getting BIA approval for our site acquisition on Indian land, non-Indians can only lease tribal land and for our type of transaction, our lease will require approval from the BIA; (2) tribal taxes may impact the facility; (3) tribal permits, licenses etc will apply, including tribal environmental laws -- the tribe may have its own tribal EPA for instance; (4) preserving the right to challenge any tribal taxes or regulations in courts, other than the tribal courts; (5) specifically getting waivers of sovereign immunity from the Tribe so that we can subject them to federal court jurisdiction; (6) specifically ensuring that the Tribe has complied with its own constitution and tribal rules in executing agreements so that such agreements are enforceable; and (7) specifically getting a waiver from the Tribe acknowledging and agreeing that Enron is not subject to the jurisdiction of the tribal courts. Evaluating all of the above as well as the numerous other issues that will likely arise will require consultation with and the cooperation of the Tribe. As you know, I am still in the process of identifying outside counsel who is an expert in Indian law matters. As an update on that, our other Florida law firm currently represents the Seminoles on other matters so they are conflicted out of representing us. Presently, I am waiting to hear back from an Indian lawyer who was involved in the recent hotel/gaming development transaction between the Seminoles and the Hard Rock Cafe group. Although he is based in Wisconsin, he is with a very large firm which has offices in Florida and Washington, DC, and which currently represents Enron on other matters. After speaking with him, I will further debrief you and if we elect to engage him, I will then seek my internal approvals for doing so. In the interim, I have been receiving advice from a retired Vinson & Elkins lawyer who has worked with Enron on its other dealings when Indian tribes were involved (ie, right of way agreements involving our pipeline companies). He has prepared a brief memo on his views on our letter of intent and general issues that arise when dealing with tribes. I would be happy to share that document with you (note that I have tried to summarize most of it above.) As a result of that memo, I do have some changes to incorporate into our letter of intent and I am still waiting to hear from you on how to modify the letter of intent based on your prior email. (I also have a more comprehensive legal paper entitled "Energy Business in Indian Country: Opportunities and Obstacles" if you are having trouble sleeping at night.) Lastly, as for Bill Bryant's current activity below, based on what you've told me and the email traffic, he seems as if he is looking at the right regulatory issues, but with an area of law as so complex as this is, I would caution that you and Marchris should narrowly define and monitor his activities as it could otherwise quickly result in a very expensive research project. Thanks and please let me know when we discuss this project further. At a minimum, I would suggest that we try to focus on finalizing the letter of intent with the Seminoles so that we can begin the process of exchanging confidential information and entering into more substantive discussions with them. Mathew Gimble@ECT 05/18/2001 10:35 AM To: Carlos Sole/NA/Enron@Enron cc: Subject: Re: Seminole Indian Tribe Comments from Bill Bryant ---------------------- Forwarded by Mathew Gimble/HOU/ECT on 05/18/2001 10:35 AM --------------------------- "Bill L. Bryant" on 05/18/2001 08:30:27 AM To: cc: , , Subject: Re: Seminole Indian Tribe Mathew, The law looks strong for our position although there is some contrary authority. I believe that the contrary Attorney General's opinion (not involving electric generation) can be distinguished. We are checking with the BIA in Washington and the Governor's office to see if there are any recent congressional acts or compacts with the tribe that would govern. (We are using as the basis for our inquiry a computer facility hypothetical that does not involve electric generation.) We are also checking for Comprehensive Planning documents that may control land use on the reservation. It shouldn't be a problem unless the Plan is considered to be an environmental regulation. We will keep you posted. Bill Katz, Kutter Haigler, Alderman, Bryant & Yon et al 106 East College Avenue, Suite 1200 Tallahassee, FL 32301 (850) 224-9634 www.katzlaw.com _______________________________________ This transmission is intended to be delivered only to the named addressee(s) and may contain information that is confidential, proprietary, attorney work-product or attorney-client privileged. If this information is received by anyone other than the named addressee(s), the recipient should immediately notify the sender by E-MAIL and by telephone (850) 224-9634 and obtain instructions as to the disposal of the transmitted material. In no event shall this material be read, used, copied, reproduced, stored or retained by anyone other than the named addressee(s), except with the express consent of the sender or the named addressee(s). Thank you. >>> 05/16/01 03:34PM >>> Bill, As I mentioned on my phone message, if you are already in the process of investigating how the Florida Siting Act applies to the Seminole Indian Tribe of Florida ("SIT"), you may disregard this message. If not, allow me to explain. We have been discussing potential generation opportunities on land owned by SIT. One project consists of coal-fired generation which would be located on SIT's Brighton Reservation and the second project consists of a natural gas-fired plant located on a site in Hollywood, FL. Under either scenario, we are curious as to how the Florida Power Plant Siting Act would apply. SIT is of the opinion that the Siting Act may not apply to them. Before we make any assumptions regarding this matter, could you review the matter and let us know your opinion. We are considering scheduling a meeting with SIT at the end of next Friday, May 24. Do not hesitate to call me at (713) 853-3526 cell (713) 594-0439 with any comments or questions. Thanks, Mathew M Gimble