Common use of State TEID Environmental Review Dispute Resolution Process Clause in Contracts

State TEID Environmental Review Dispute Resolution Process. Environmental review disputes between the Tribe and the State that are unresolved using the procedures of section 11.8, subdivision (d) shall be resolved using the following Environmental Review Dispute Resolution Process (the “ERDR Process”). (a) To initiate the ERDR process, the State shall serve a written notice (the “ERDR Notice”) on the Tribe, within twenty (20) days after the conclusion of the meet and confer process of section 11.8, subdivision (d), identifying with particularity those aspects and provisions of the Report and Decision or the TEID that the State alleges constitute a Compliance Issue. (b) The dispute shall thereupon be resolved by arbitration and the costs of the arbitration shall be advanced by the State out of the Special Distribution Fund. The arbitrator shall be authorized to award or apportion costs against the Tribe as the arbitrator deems just. The arbitration shall be conducted by a single arbitrator selected as follows: (1) Within thirty (30) days following the Tribe’s receipt of the ERDR Notice, the State and the Tribe shall agree in writing upon a single retired federal judge or federal magistrate judge or other person to act as the arbitrator; (2) If the State and the Tribe cannot agree on an arbitrator, then within forty-five (45) days following the Tribe’s receipt of the ERDR Notice, the State and the Tribe shall meet and each shall submit to the other the names of not more than three (3) retired federal judges or federal magistrate judges. From the resulting group of names, three (3) names shall be randomly selected in a manner agreed upon by the Tribe and the State, and from that list of three (3) names, the State and the Tribe shall each be allowed to strike one (1) name from the list. A coin toss shall determine which party may strike the first name. (c) Within thirty (30) days after being designated, the arbitrator shall initiate proceedings to determine whether the Report and Decision or the TEID has failed to adequately address a Compliance Issue. The arbitrator may determine the matter on the written submissions of the Tribe and the State, or may conduct an evidentiary hearing and receive oral testimony and legal argument. In making this determination, the arbitrator shall uphold the Report and Decision unless the arbitrator finds that: (i) the Report and Decision or the TEID is not supported by the findings; (ii) the Report and Decision findings are not supported by substantial evidence in light of the whole record; (iii) the Tribe has not substantially complied with the substantive provisions of the Tribal Environmental Protection Ordinance; or (iv) the Tribe has not otherwise substantially complied with the requirements of sections 11.6 or 11.7. (d) Within twenty (20) days after closing the record, the arbitrator shall issue a written decision finding either that: (i) the Report and Decision and the TEID comply with the requirements of sections 11.6 and 11.7, or (ii) the Report and Decision and the TEID do not comply with the requirements of section 11.6 or 11.7 and identifying those specific provisions and aspects of the Report and Decision or the TEID that fail to comply. A decision under subdivision (d)(i) shall be final and binding and shall terminate the ERDR Process. If a decision is rendered under subdivision (d)(ii), the Tribe shall take such actions as are necessary to revise, amend or supplement the Report and Decision and the TEID, as appropriate, to address and correct the deficiencies identified in the arbitrator’s decision. (e) Following the issuance of the Tribe’s revised, amended or supplemental Report and Decision and the TEID (collectively, the “Amended Report and Decision”), the Tribe shall provide a written copy of the Amended Report and Decision to the State. The State shall thereupon have thirty (30) days to review the Amended Report and Decision for compliance with the arbitrator’s decision. If the State is satisfied that the Amended Report and Decision have corrected the deficiencies identified in the arbitrator’s decision, the State shall so notify the Tribe in writing within the thirty (30)-day- review period, the ERDR Process shall thereupon be concluded, and the Tribe and the State shall enter into the Mitigation Agreement required by section 11.7, subdivision (m). If the State contends that the Amended Report and Decision fails to correct the deficiencies, the State shall so notify the Tribe in writing within the thirty (30)-day- review period, identifying with particularity the remaining deficiencies. (f) If the State continues to contend the Amended Report and Decision fails to satisfy the requirements of sections 11.6 or 11.7, the Tribe and the State shall thereupon submit their dispute to the same arbitrator before whom the dispute was originally heard and follow the procedure provided by subdivisions (c) through (e) until any remaining environmental review disputes identified by the State are determined to be substantially addressed by the Tribe in accordance with the requirements of sections 11.6 and 11.7. If the same arbitrator is not available, a new arbitrator shall be selected using the procedures of subdivision (b). (g) An arbitrator’s decision rendered under subdivision (d)(ii) shall not be deemed a breach of this Compact and shall not be the basis for an action to terminate this Compact under section 13.5, provided that the Tribe continues to engage in the arbitration process provided for in subdivisions (b) through (f).

State TEID Environmental Review Dispute Resolution Process. Environmental review disputes between the Tribe and the State that are unresolved using the procedures of section 11.8, subdivision (d) shall be resolved using the following Environmental Review Dispute Resolution Process (the “ERDR Process”). (a) To initiate the ERDR process, the State shall serve a written notice (the “ERDR Notice”) on the Tribe, within twenty (20) days after the conclusion of the meet and confer process of section 11.8, subdivision (d), identifying with particularity those aspects and provisions of the Report and Decision or the TEID that the State alleges constitute a Compliance Issue. (b) The dispute shall thereupon be resolved by arbitration and the costs of the arbitration shall be advanced by the State out of the Special Distribution Fund. The arbitrator shall be authorized to award or apportion costs against the Tribe as the arbitrator deems just. The arbitration shall be conducted by a single arbitrator selected as follows: (1) Within thirty (30) days following the Tribe’s receipt of the ERDR Notice, the State and the Tribe shall agree in writing upon a single retired federal judge or federal magistrate judge or other person to act as the arbitrator; (2) If the State and the Tribe cannot agree on an arbitrator, then within forty-five (45) days following the Tribe’s receipt of the ERDR Notice, the State and the Tribe shall meet and each shall submit to the other the names of not more than three (3) retired federal judges or federal magistrate judges. From the resulting group of names, three (3) names shall be randomly selected in a manner agreed upon by the Tribe and the State, and from that list of three (3) names, the State and the Tribe shall each be allowed to strike one (1) name from the list. A coin toss shall determine which party may strike the first name. (c) Within thirty (30) days after being designated, the arbitrator shall initiate proceedings to determine whether the Report and Decision or the TEID has failed to adequately address a Compliance Issue. The arbitrator may determine the matter on the written submissions of the Tribe and the State, or may conduct an evidentiary hearing and receive oral testimony and legal argument. In making this determination, the arbitrator shall uphold the Report and Decision unless the arbitrator finds that: (i) the Report and Decision or the TEID is not supported by the findings; (ii) the Report and Decision findings are not supported by substantial evidence in light of the whole record; (iii) the Tribe has not substantially complied with the substantive provisions of the Tribal Environmental Protection Ordinance; or (iv) the Tribe has not otherwise substantially complied with the requirements of sections 11.6 or 11.7. (d) Within twenty (20) days after closing the record, the arbitrator shall issue a written decision finding either that: (i) the Report and Decision and the TEID comply with the requirements of sections 11.6 and 11.7, or (ii) the Report and Decision and the TEID do not comply with the requirements of section 11.6 or 11.7 and identifying those specific provisions and aspects of the Report and Decision or the TEID that fail to comply. A decision under subdivision (d)(i) shall be final and binding and shall terminate the ERDR Process. If a decision is rendered under subdivision (d)(ii), the Tribe shall take such actions as are necessary to revise, amend or supplement the Report and Decision and the TEID, as appropriate, to address and correct the deficiencies identified in the arbitrator’s decision. (e) Following the issuance of the Tribe’s revised, amended or supplemental Report and Decision and the TEID (collectively, the “Amended Report and Decision”), the Tribe shall provide a written copy of the Amended Report and Decision to the State. The State shall thereupon have thirty (30) days to review the Amended Report and Decision for compliance with the arbitrator’s decision. If the State is satisfied that the Amended Report and Decision have corrected the deficiencies identified in the arbitrator’s decision, the State shall so notify the Tribe in writing within the thirty (30)-day- 30)-day-review period, the ERDR Process shall thereupon be concluded, and the Tribe and the State shall enter into the Mitigation Agreement required by section 11.7, subdivision (m). If the State contends that the Amended Report and Decision fails to correct the deficiencies, the State shall so notify the Tribe in writing within the thirty (30)-day- 30)-day-review period, identifying with particularity the remaining deficiencies. (f) If the State continues to contend the Amended Report and Decision fails to satisfy the requirements of sections 11.6 or 11.7, the Tribe and the State shall thereupon submit their dispute to the same arbitrator before whom the dispute was originally heard and follow the procedure provided by subdivisions (c) through (e) until any remaining environmental review disputes identified by the State are determined to be substantially addressed by the Tribe in accordance with the requirements of sections 11.6 and 11.7. If the same arbitrator is not available, a new arbitrator shall be selected using the procedures of subdivision (b). (g) An arbitrator’s decision rendered under subdivision (d)(ii) shall not be deemed a breach of this Compact and shall not be the basis for an action to terminate this Compact under section 13.5, provided that the Tribe continues to engage in the arbitration process provided for in subdivisions (b) through (f).