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Experience

Nationwide Reach

Dorsey has served Indian Tribes and ANCs and handled Indian law matters throughout the United States map.

Alaska Native Matters

Dorsey & Whitney LLP provides transaction and litigation services to Alaska Native regional and village corporations, their subsidiaries, joint ventures, and individual shareholders, as well as clients doing business with Alaska Native corporations. Dorsey has extensive experience counseling Alaska Native corporations, their subsidiaries and joint ventures, lenders, and other clients doing business with Alaska Native corporations in merger and acquisition transactions, financing, real estate sales and leasing, land and natural resource management, oil drilling contracts, business contracts, general corporate matters, shareholder relations, and proxy and shareholder meeting issues. Dorsey's attorneys represent these clients in state and federal trial and appellate courts in cases involving a broad array of issues, including election matters, proxy solicitations, land conveyances under the Alaska Native Claims Settlement Act and complex commercial disputes.

Benefits, Compensation & Retirement Plans

Dorsey assists a number of Tribes and tribal entities on employee benefits ranging from health insurance and fringe benefits to retirement plans. The Pension Protection Act of 2006 amended the Internal Revenue Code and ERISA to make it more difficult for Tribes to assert that tribal plans are governmental plans that are exempt from nondiscrimination, reporting and disclosure, fiduciary requirements, and enforcement and penalties by the DOL and IRS.

Representative Matters

Dorsey has worked on the following:

  • Dorsey is working with the IRS to clarify the ability to include compensation excluded from income under section 7873 when determining compensation for purposes of contributions to and accrual of benefits under tribal retirement plans.
  • Dorsey has assisted employers in reviewing retirement plan amendments and compliance with changes in the law.
  • Dorsey has assisted employers with questions on the Pension protection Act and the transition relief provided under Notice 2006-89 and Notice 2007-67.
  • Dorsey has assisted with the tribal entities with questions regarding health care reform (the Patient Protection and Affordable Care Act and the Health Care and Education Reform Act).
  • Dorsey has assisted with the development of child care programs and a child care center.

Compliance and Penalties

The IRS and DOL are increasing their enforcement of the Code and ERISA. penalties under these statutes can be severe, including penalties of up to $1,100 per day for late filing of Form 500 and substantial penalties for HIPAA violations. Our attorneys work with tribal entities to review their plans and assist them in complying with the lengthy and complex rules that govern employee benefits, compensation, and retirement plans.

Litigation and Appellate Practice

Dorsey’s Indian law litigation experience includes representation of tribes, tribal entities, and tribal officials in a broad variety of litigated matters. Dorsey has appeared on behalf of tribal clients in tribal, federal, and state courts across the country, and also in arbitrations and before federal agencies. Dorsey has handled significant cases in Indian country involving treaty rights, state taxation, employment, election, and membership disputes, breach of contract, breach of trust duty, federal recognition, and gaming, among other areas.

Representative Litigation Matters

Dorsey has achieved litigation success in all stages of litigation in a wide range of Indian law cases. Here are a few recent examples.

  • Dorsey represented an Indian Tribe in litigation against the Indian Health Service and Bureau of Indian Affairs for underpayment of contract support costs under Indian Self-Determination and Assistance Act (ISDA) contracts.
  • Dorsey represented an Indian Tribe in federal court litigation against the state of Michigan Revenue Officials challenging the state’s attempt to impose ad valorem property taxes against the Tribe and its members on fee land within the Tribe's Reservation. Dorsey obtained summary judgment on behalf of the Tribe and that decision was affirmed by the Sixth Circuit Court of Appeals.
  • Dorsey represented an Indian Tribe, one of its tribal corporations and various tribal officials in federal court litigation against Kansas Revenue Officials regarding the state’s seizure of the tribal corporation's gas tanker truck and the state’s attempt to impose a state fuel tax on sales of fuel by the tribal corporation to Indian tribes in Kansas. Dorsey obtained a temporary restraining order and preliminary injunction from the Federal District Court in Kansas, and this injunctive relief was affirmed by the 10th Circuit Court of Appeals. Dorsey later obtained summary judgment on behalf of the Tribe, the tribal corporation, and tribal officials.
  • Dorsey currently represents an Indian Tribe in federal court challenging an attempt by a city and state government to impose personal property taxes on gaming devices leased by the Tribe for use in the Tribe’s gaming facility. While the federal case is ongoing, we have obtained a stay of a state court tax case brought by the township, and have also obtained several key discovery rulings in favor of the Tribe.
  • Dorsey recently represented a Tribe in its Tribal Court against a challenge to the Tribe’s implementation of a random drug testing policy among its government and tribal employees. The Tribal Court recently ruled in favor of the Tribe, upholding its random drug testing policy. The matter is on appeal to the Tribe’s Appellate Court.
  • Dorsey represented an Indian Tribe in federal and tribal court litigation arising out of a golf course development and management contract. Dorsey obtained dismissal of the federal court action on behalf of the Tribe, and eventually assisted the Tribe in obtaining a very favorable settlement after several key rulings in favor of the Tribe in Tribal Court.

Appellate Practice

Dorsey has handled federal appellate Indian law cases in the 2nd, 6th, 8th, 9th and 10th Courts of Appeals, the appellate courts in the states of California, Minnesota, Wisconsin, Kansas and Iowa, and the appellate tribal courts for the Keweenaw Bay Indian Community, the Winnebago Tribe of Nebraska, the Las Vegas Paiute Tribe, and the Intertribal Court of Southern California. Dorsey has also filed amicus briefs for various tribal clients, including the National Congress of American Indians, with the United States Supreme Court.

Tax Planning, Controversy and Litigation

Dorsey has an extensive and comprehensive Indian tax practice representing clients throughout the United States. We have extensive experience representing tribes, tribal entities, and tribal members in all types of federal, state, and tribal tax matters. Here are some examples of our specific experience in these areas:

Representative Federal Administrative Tax Controversies, Tax Litigation, and Tax Rulings

  • We have represented tribes, tribal entities, and tribal members in numerous IRS compliance checks, audits, and administrative appeals, involving tribal benefit programs, employment taxes, information reporting, income tax withholding, worker classification, penalties, tax-exempt financing, excise taxes, and cash transaction reporting issues. Currently, we are representing one tribe and three tribal entities in a large-scale, complex audit, and two tribes in administrative appeals involving a six-figure civil penalty issue and a six-figure worker reclassification issue, respectively. Recently, we represented another tribe in successful negotiations with the U.S. Department of Justice – Tax Division to resolve a seven-figure dispute over back payroll taxes.
  • We have successfully represented tribes in the course of IRS examinations and in an administrative appeal in which the IRS has challenged the tribe’s classification of its board, committee, and commission members as independent contractors rather than as employees.
  • Little Six, Inc. v. United States, 210 F.3d 1361 (Fed. Cir. 2000), holding that federal wagering excise and occupational taxes do not apply to Indian tribal governments. (This result was subsequently overturned by the U.S. Supreme Court in a case in which we did not represent the tribes involved.)
  • PLR 200511006 (Nov. 23, 2004), ruling that funds distributed to tribal members constitute income from a fishing rights-related activity and therefore are exempt from federal income, FICA, and FUTA taxes.
  • TAM 200106007 (Feb. 12, 2001), holding that a trust program for minor tribal members gives rise to income tax when amounts are distributed from the trusts to the tribal members and not before.
    IRS unpublished general information letter (Oct. 25, 2000), discussing the income tax consequences of a tribal housing loan program with a loan forgiveness feature, involving a significant issue of first impression in the IRS National Office.
  • PLR 200022048 (June 5, 2000), similar to TAM 200106007, also involving a significant issue of first impression.
  • PLR 199908006 (Nov. 17, 1998), ruling that a deferred per capita benefit program for electing adult tribal members using “Rabbi trust” funding vehicle achieves income tax deferral, also involving a significant issue of first impression.
  • PLR 9847018 (Nov. 20, 1998), ruling that a Section 17 corporation will be treated as a state for purposes of issuance of tax-exempt obligations, also involving a significant issue of first impression.

Representative State Tax Litigation, Administrative Tax Controversies, and Tax Rulings

  • Mashantucket Pequot Tribe v. Town of Ledyard et al., 2012 WL 1069342 (D. Conn. Mar. 27, 2012) (slip copy), holding that federal law precluded the Town of Ledyard from imposing its personal property tax on the Tribe’s leased gaming machines and, as a result, awarding summary judgment to the Tribe. The Town and the State of Connecticut are appealing the judgment in this case to the U.S. Court of Appeals for the Second Circuit.
  • Mashantucket Pequot Tribe v. Town of Ledyard, et al., 2008 WL 4298377 (D. Conn. Sept. 18, 2008), holding that broad financial information regarding the Tribe is not discoverable by the Town and the State of Connecticut in a case concerning the applicability of the Town’s personal property tax to gaming equipment leased by the Tribe and used in the Tribe’s gaming enterprise, because the parties’ relative financial circumstances are not relevant to federal preemption analysis.
  • Winnebago Tribe of Nebraska, et al. v. Morrison, et al., Case No. 02-4070-JTM (D. Kan. Sept. 6, 2007), awarding summary judgment to tribes engaged in Indian nation-to-Indian nation trading against Kansas officials who sought to enforce the Kansas motor fuel tax laws against the tribes and tribal officials (four earlier favorable decisions in this case are reported at 150 P.3d 892 (Kan. 2007), 341 F.3d 1202 (10th Cir. 2003), 216 F. Supp. 2d 1226 (D. Kan. 2002), and 205 F. Supp. 2d 1217 (D. Kan. 2002)).
  • Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514 (6th Cir.), cert. denied, 127 S. Ct. 680 (2006), affirming grant of summary judgment enjoining Michigan officials from enforcing the Michigan General Property Tax Act against lands owned in fee simple by the tribe and tribal members within their Indian reservation (an earlier favorable decision in this case is reported at 370 F. Supp. 2d 620 (W.D. Mich. 2005)).
  • We have represented a tribe and numerous of its members before a state taxing agency in cases in which the agency has challenged tribal members’ residency on the reservation and asserted the right to tax income from tribal members’ passive investments in intangible property and income earned outside the state.
  • We have obtained rulings and exemption certificates from various states recognizing the inapplicability of state sales and use taxes to reservation construction projects.

Tax-Related Services Experience (Not Involving Litigation or Administrative Agency Practice)

  • We have advised numerous tribes and tribal entities regarding available federal and state tax exemptions, the legal incidence of potentially applicable state taxes, application of the balancing test used in federal preemption analysis, and related tax planning.
  • We have advised numerous tribes and tribal entities regarding enterprise and investment structuring and other economic development and investment tax planning.
  • We drafted a comprehensive revision to the tribal tax code for a large tribe with a large reservation and provided related advice to the tribe regarding the scope of its taxing power permitted under federal law.
  • We have advised numerous tribes and tribal entities regarding compliance with applicable federal and state tax laws involving employment taxes, income taxes, property taxes, sales and use taxes, and other excise and transaction taxes.
  • We submitted comments to the IRS for several tribal clients regarding proposed entity classification regulations and pending IRS guidance projects on tribal law corporations and tribal minors’ trust programs.
  • We have developed and drafted numerous revenue allocation plans, minors’ trust programs, and adult deferred per capita benefit programs.
  • We have reviewed existing revenue allocation plans and tribal benefit programs for several tribal clients and developed and drafted amendments to such plans and programs to minimize tax risks.
  • We have developed and drafted numerous tribal housing, education, health, elder, utilities assistance, and emergency and other assistance programs intended to qualify as general welfare programs providing nontaxable benefits to tribal members.
  • We have served as bond counsel in dozens of tax-exempt financings and refinancings for tribal clients.
  • We have advised and assisted tribal clients in all types of employee benefit matters.
    We served as the principal presenters at the two-day Tribal-State Tax Summit convened by the Coushatta Tribe of Louisiana and attended by tribal and state officials in November 2002.
  • We provided technical analysis and assisted tribal clients in lobbying against proposals to tax tribal gaming income in the mid-1990s and against the more recent Prevent All Cigarette Trafficking Act legislation.
  • We provided technical analysis and assisted tribal clients in lobbying in favor of various proposals to liberalize rules governing tribal tax-exempt financings.

Tribal Finance

Dorsey has represented tribes and financing sources to tribes in connection with the financing of tribal governmental projects, land acquisition, health care facilities, schools, community centers, water and sewage facilities, recreational projects, golf courses, convention centers, law enforcement and public safety facilities, class II and class III gaming projects, resorts, hotels, and other reservation economic development facilities.

Representative Work

Tribal Taxable Bond Financings

Dorsey has served as counsel either to the Tribal issuer or the underwriter in connection with bond and note financings, including the following structures:

  • Bonds payable from gaming or other enterprise revenues
  • Bonds insured by bond insurance
  • Bonds secured by bank letters of credit
  • We conceived and developed the “depository” structure now widely used in Indian country financings. This structure enables a tribe to undertake future borrowings on a parity with earlier borrowings as tribal revenues, and resulting borrowing capacity, grow

Tribal Commercial and Syndicated Bank Financings

Dorsey has represented either the Tribal borrower or one or more lending financial institutions in numerous financings of gaming, hotel and related facilities, and other reservation-based economic development projects, including:

  • Single bank loans and loans from institutional investors
  • “Club” bank financings
  • Syndicated bank loans
  • Transactions that involve combinations of one or more of the foregoing elements and bonds or notes

Tribal Tax-Exempt Financings

Dorsey was the bond counsel on the first tribal tax-exempt financing undertaken by a tribe in the United States under the Tribal Government Tax Status Act, a financing by the Fond du Lac Band of Lake Superior Chippewa for a reservation clinic in 1985. Dorsey has served as bond counsel to the tribal issuer, or as counsel to the underwriter or lender, on tax-exempt financings for over 25 tribes listed here. Dorsey’s experience in tax-exempt tribal financings includes virtually all types of tax-exempt transactions, including bond issues, loans, revolving credit lines and lease financings. In addition, Dorsey has been actively involved in the tribal economic development bond program established as part of the American Recovery and Reinvestment Act of 2009, working closely with tribes, industry groups, and the IRS on program implementation and efforts to enhance the effectiveness and utilization by tribes of the program.

Tribal Financial Restructuring & Bankruptcy

Dorsey has experienced bankruptcy lawyers, but also lawyers specifically experienced in Indian law and the insolvency of Indian owned entities and gaming facilities. Dorsey’s group of insolvency lawyers work closely in conjunction with Dorsey’s experienced lawyers in Indian and gaming law. Dorsey’s lawyers doing insolvency and restructuring work represent secured creditors, creditors’ committees, distressed companies, debtors in possession, acquirors of distressed companies or their assets, investors, indenture trustees, debtor in possession lenders, specialty lenders, financial services companies, and other participants in reorganization, liquidation, insolvency, and workout proceedings. The group’s restructuring advisory services for distressed companies focus on out-of-court restructurings, foreclosures and chapter 11, including “prepackaged” and “prearranged reorganizations.”

Firm Highlights

Regulatory Affairs Partner Randy Dann Joins Dorsey

News

Regulatory Affairs Partner Randy Dann Joins Dorsey

Insights

EPA Limits Title V Re-Litigation of NSR Permits

Overview On September 25, 2026, the U.S. Environmental Protection Agency (“EPA”) published a final rule that significantly limits the ability of third parties to use the Clean Air Act (“CAA”) Title V permitting process to revisit New Source Review (“NSR”) permitting decisions years after those decisions were made. The rule establishes that NSR permitting determinations generally must be challenged during the original permitting proceeding, thereby providing regulated sources with greater permitting certainty and finality for major capital projects. Published in the Federal Register titled Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program (Docket ID No. EPA-HQ-OAR-2023-0401), the rule amends 40 C.F.R. Parts 70 and 71 to codify EPA’s interpretation regarding when requirements established under other CAA programs may be reviewed, modified, or implemented through the Title V operating permit program. The rule becomes effective 30 days after publication. The rule addresses two principal issues: (1) the relationship between NSR preconstruction permitting and Title V operating permits, and (2) the treatment of the General Duty Clause under CAA section 112(r)(1). Most significantly, the rule provides greater certainty for sources navigating the NSR permitting process. EPA’s amendments are intended to ensure that NSR permitting decisions made through an approved public process are generally not revisited later through Title V permit proceedings. The rule responds to a circuit split between the U.S. Courts of Appeals for the Fifth and Tenth Circuits. In Environmental Integrity Project v. EPA, 969 F.3d 529 (5th Cir. 2020), the Fifth Circuit upheld EPA’s interpretation, concluding that it was consistent with the text, structure, and purpose of Title V. In contrast, the Tenth Circuit reached the opposite conclusion in Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020), finding that the then-existing regulatory definition of “applicable requirement” did not support EPA’s position. By amending the regulatory language on which the Tenth Circuit relied and codifying the interpretation approved by the Fifth Circuit, EPA has established a nationwide framework governing the interaction between NSR and Title V. NSR and Title V: EPA Establishes a Uniform Nationwide Framework At the core of the rule is EPA’s effort to define the respective roles of NSR and Title V. The rule codifies the approach EPA has applied since 2017: once a source obtains an NSR permit under an EPA-approved permitting program, and that permit was issued following public notice with an opportunity for comment and judicial review, the permit establishes the NSR-related “applicable requirements” of the State Implementation Plan (“SIP”) or Federal Implementation Plan (“FIP”) for Title V purposes. Under this framework, Title V is not a vehicle for re-examining underlying NSR permitting decisions. EPA does not intend to use the Title V process to revisit applicability determinations, emissions calculations, control technology determinations, permit conditions, or other issues resolved through the NSR permitting process. This principle applies regardless of the stage of the Title V proceeding; whether the NSR permit was issued pursuant to a SIP or FIP; the type of NSR issue involved; or whether the NSR permit is incorporated into Title V sequentially or concurrently. Limited Exceptions EPA recognizes several circumstances in which NSR issues may still be reviewed through the Title V program: No NSR permit was issued at all; The permit was issued without public notice and an opportunity for comment and judicial review; or The issue involves substantive overlap between Title V and NSR requirements, such as the adequacy of monitoring provisions. As a result, the rule does not insulate unpermitted projects or foreclose review of matters that independently arise under Title V. Key Regulatory Amendments The rule revises the definition of “applicable requirement” in 40 C.F.R. §§ 70.2 and 71.2. Paragraph (1): Where an NSR permit is issued with public notice and an opportunity for comment and judicial review, the permit establishes and defines the applicable SIP or FIP requirements for Title V purposes. Paragraph (2): All NSR permit terms, including terms contained in minor NSR permits, constitute applicable requirements that must be incorporated into Title V permits. Paragraph (4): CAA section 112(r)(1) (the General Duty Clause) is expressly excluded from the definition of “applicable requirement,” while section 112(r)(7) Risk Management Program requirements remain included. EPA also amended 40 C.F.R. §§ 70.8 and 70.12 to clarify that alleged defects in requirements established outside the Title V process generally do not provide a basis for EPA objection to a Title V permit or for a Title V citizen petition. General Duty Clause Exclusion The rule also codifies EPA’s longstanding position that the General Duty Clause in CAA section 112(r)(1) is not an “applicable requirement” for Title V purposes. EPA points to several considerations supporting that conclusion, including the distinction between the General Duty Clause and Title V permit terms, the provision’s origins in the Occupational Safety and Health Act’s general duty clause, and the different enforcement structures applicable to the General Duty Clause and Title V permit requirements. Importantly, excluding section 112(r)(1) from the definition of “applicable requirement” does not eliminate EPA’s authority to enforce the General Duty Clause independently of the Title V program. The final rule instead clarifies that the General Duty Clause need not—and should not—be incorporated into Title V permits as an applicable requirement. Practical Implications for Regulated Sources Greater Finality for NSR Permits  For projects requiring PSD, nonattainment NSR, or minor NSR permits, the permitting process becomes the primary forum for resolving disputes regarding applicability determinations, emissions calculations, control technology requirements, offsets, and permit conditions. Once an NSR permit is issued through a qualifying public process, regulated sources should face substantially reduced risk that those same issues will be challenged years later through Title V permit proceedings. Reduced Risk of Collateral Permit Challenges Stakeholders have sometimes sought to use Title V permit issuance, renewal, revision, or citizen-petition proceedings to challenge underlying NSR determinations. The final rule makes clear that Title V is not the appropriate vehicle for challenging whether an applicable requirement was correctly established in the first instance. This should reduce the risk of permit delays and uncertainty associated with collateral challenges to previously issued NSR permits. The rule does not, however, eliminate all Title V challenges relating to an NSR permit. Challenges concerning the Title V permit itself—including whether it appropriately incorporates applicable requirements or contains adequate compliance provisions—remain possible. Increased Importance of the Initial NSR Proceeding Because Title V generally will not provide a second opportunity to challenge the substantive validity of an NSR determination, the administrative record developed during the NSR process becomes increasingly important. Permit applicants should ensure that applicability analyses, emissions calculations, control technology evaluations, modeling demonstrations, and supporting technical documentation are thoroughly developed during the original permitting proceeding. For significant projects, applicants may therefore have an additional incentive to identify and resolve potential permitting issues before the NSR permit is issued rather than assuming that unresolved issues can be addressed during a subsequent Title V proceeding. Potential Incentive for Broader Public Participation EPA also notes that permitting authorities may choose to provide public notice and an opportunity for comment for a broader range of NSR permits because permits issued through a qualifying public process receive the benefit of the finality framework established by the rule. Some permitting authorities may conclude that greater public participation at the NSR stage is preferable to uncertainty during subsequent Title V proceedings. Conclusion The final rule is principally a permitting-certainty measure. For sources that obtain NSR permits through a public process, EPA has substantially limited the ability of third parties to revisit underlying NSR determinations through the Title V program. As a result, regulated entities should benefit from greater finality regarding key permitting decisions, reduced risk of collateral permit challenges, and increased certainty when planning and implementing capital projects.

Insights

SEC Proposes Expansion of Investment Adviser Performance-Based Compensation Rule

On September 30, 2026, the Securities and Exchange Commission (the “SEC”) proposed amendments to Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), which provides an exemption from the general prohibition under Section 205(a)(1) of the Advisers Act on registered investment advisers receiving performance-based compensation (the “Proposal”) so long as performance-based compensation is limited to “qualified clients”.1 Most notably for private fund sponsors, the Proposal would expand the definition of “qualified client” to include any investors that satisfy the “accredited investor” definition under Regulation D. The Proposal may also have implications for private fund managers that rely on exemptions from investment adviser registration under state law because certain state-level investment adviser registration exemptions incorporate or otherwise reference the federal qualified client definition. Expansion of the Qualified Client Definition Under the current Rule 205-3, an investor generally may qualify as a qualified client if, among other alternatives, the investor has at least $1.4 million under management with the adviser or has a net worth exceeding $2.7 million. These thresholds are higher than the financial thresholds applicable to many accredited investors under Regulation D. As a result, an investor may currently qualify as an accredited investor for purposes of investing in a private offering without qualifying as a qualified client for purposes of paying performance-based compensation. The Proposal would expand the qualified client definition to include any natural person or legal entity investor that satisfies the accredited investor definition under Regulation D. The Proposal would also remove the assets under management and net worth thresholds under the current Rule 205-3 qualified client test. For private funds relying on Section 3(c)(1) of the Investment Company Act of 1940, this change could reduce the need to apply a separate qualified client standard to investors that already qualify as accredited investors. Dorsey Observations and Next Steps If adopted as proposed, the expanded qualified client definition could be particularly significant for private fund managers. Most private fund offerings are already limited to accredited investors under Regulation D. However, the Proposal could expand the pool of prospective investors available to emerging private fund managers while reducing the regulatory burden associated with complying with Rule 205-3. The Proposal could also benefit advisers operating below the SEC registration threshold that rely on a state private fund adviser exemption. A number of states have adopted exemptions modeled on the North American Securities Administrators Association (“NASAA”) private fund adviser exemption, which may condition relief for advisers to certain funds relying on Section 3(c)(1) on each beneficial owner satisfying the federal qualified client definition. However, state requirements vary, and any effect of the Proposal would depend on the text of the applicable state exemption and how it incorporates Rule 205-3. Many emerging private fund managers may have a larger network of accredited investor relationships than qualified client relationships during the early stages of their investment advisory business. Currently, under Rule 205-3, private fund managers may receive performance-based compensation from investors who do not satisfy the qualified client definition if those investors were admitted to their private funds prior to registration with the SEC. Following registration with the SEC, however, managers may continue to permit investors that are not qualified clients to invest in future private funds but may not receive performance-based compensation from those investors with respect to such investments. In addition, because the net worth and assets under management thresholds for qualified client status are adjusted for inflation every five years, the pool of qualified client investors may diminish over time as previously eligible investors no longer satisfy the applicable thresholds. The Proposal could provide the dual benefit of greater flexibility for private fund managers to establish and maintain relationships with accredited investors as their businesses scale and they become registered with the SEC, and greater flexibility for certain accredited investors to participate in investment strategies that historically have been restricted to much larger institutional investors. Unless and until the Proposal is adopted, investment advisers should continue to comply with the existing qualified client requirements. If the Proposal is adopted, private fund sponsors should consider whether corresponding changes are appropriate for their subscription documents, investor questionnaires, and other offering materials. Advisers that are state-registered or rely on a state-level exemption should also consult the laws and regulations of each relevant jurisdiction before changing investor eligibility standards or performance-based compensation practices, because adoption of the federal amendments may not automatically modify state requirements. Comments on the Proposal will be due 60 days after publication in the Federal Register. 1 Investment Adviser Performance-Based Compensation Modernization, Investment Advisers Act Release No. IA-7022 (Sept. 30, 2026), available at https://www.sec.gov/rules-regulations/2026/09/s7-2026-28#33-11443proposed.

News

Dorsey Recognized in Inaugural 2026 IAM/WTR Copyright 1000

Dorsey & Whitney LLP is pleased to announce its recognition in the inaugural edition of the Copyright 1000: The World’s Leading Copyright Professionals, published by IAM and World Trademark Review (WTR). Nine Dorsey attorneys were individually recognized, and the Firm’s Denver, Minneapolis, New York, Salt Lake City, and Seattle offices were recognized in the firm rankings. The following Dorsey attorneys were recognized in the inaugural guide: Lindsey Sadler Gregory Tamkin Charlene Krogh Evan Everist Jeffrey Cadwell Fara Sunderji Bruce Ewing Catherine Parrish Lake J. Michael Keyes The Copyright 1000 is the first dedicated ranking focused solely on the world’s leading copyright practitioners. The guide identifies leading copyright firms and practitioners across key jurisdictions worldwide. Dorsey’s intellectual property attorneys advise clients on a wide range of copyright matters, including protection, enforcement, licensing, litigation, transactions, and issues involving emerging technologies and digital content. The inaugural Copyright 1000 rankings are published by IAM and WTR.

Insights

Energy Law: Month in Review - September 2026

Welcome to Dorsey’s Energy Law: Month in Review. We provide this update to our clients to identify significant developments in the previous month. Please reach out to any of the authors, listed above, to discuss these issues. Regulatory Developments Massachusetts Ratchets Up State and Local Regulation of AI Data Centers In early September, Governor Maura Healey of Massachusetts signed an executive order requiring that artificial intelligence data centers secure the approval of local communities as a precondition to proceeding with a given project. According to the terms of the order, data center developers will need to secure a “community benefits agreement” as a precondition to receiving permits from numerous state agencies, including the Department of Environmental Protection, the Energy Facilities Siting Board, and the Massachusetts Environmental Policy Act Office. Beyond requiring community benefits agreements, the order also mandates that developers mitigate utility costs to consumers, prohibits the use of nondisclosure agreements, and requires various state agencies to develop measures to limit data center impacts on the environment. North Carolina Regulators Decline Approval of Duke Energy Gas Turbine On September 18, 2026, North Carolina Utilities Commission (NCUC) denied Duke Energy’s application for a certificate of public convenience and necessity required to construct a gas-fueled combustion turbine at its Smith Energy Complex in North Carolina. The NCUC objected strongly to the $584 million price tag and noted that Duke appeared to be constructing the facility “based on anticipated data center customer additions.” The NCUC rejected that anticipated growth as “insufficiently reliable for the Commission to act at this point.” In rejecting Duke’s application, the NCUC also noted that Duke had signed the White House Ratepayer Protection Pledge, in which it represented that it would not shift data center costs to consumers. The NCUC observed that the record did not demonstrate how Duke “intends to adhere to its commitments under the Ratepayer Protection Pledge with regard to the Proposed Facility.” Notably, commission staff had actually supported the construction of the turbine, citing concerns about Duke’s reserve margins. The NCUC noted that it “understands the Public Staff’s expressed concerns,” but those concerns were outweighed by the NCUC’s reservations, including questions of demand. Department of Energy Approves Funds for Grid Improvement The U.S. Department of Energy (DOE) recently announced that it would fund 31 grid-improvement projects in 26 states. The funding initiative is part of the DOE’s “SPARK” initiative. The funding will include $1.9 billion in federal funding from DOE and $3.35 billion in recipient cost-sharing funding. The funds will go to projects designed to improve grid reliability and lower electricity costs. Recipients plan to reconductor over 1,500 miles of transmission lines and will deploy grid-enhancing technologies across approximately 21,000 miles. DOE stated that this initiative will make available over 23 additional gigawatts of electricity. Texas Moderates Rules Governing Data Center Interconnection The Texas Public Utility Commission adopted new regulations governing large-load interconnections. The rules impose a flat study fee of $100,000 for all proposed interconnections, which departs from the initial proposal to impose study fees using a tiered system based on project size. Additionally, the final rule eliminates the PUC’s previous proposal to impose a non-refundable interconnection fee of $50,000 per MW of contracted peak demand. The final rule also moderates the initially proposed regulations governing Electric Reliability Council of Texas (ERCOT) notifications for large-load customers’ non-utilized capacity. The proposed rules would have required notifying ERCOT within 30 days of missing a scheduled energization milestone by six months. The final rules, however, do not require informing ERCOT unless a scheduled energization milestone is missed by 24 months. FERC Denies TransAlta 202(c) Cost-Recovery Plan The Federal Energy Regulatory Commission (FERC) recently rejected TransAlta’s plan to recover $19.9 million in expenses stemming from a DOE order in which DOE prohibited TransAlta from retiring its coal-powered Centralia power plant. TransAlta had previously intended to retire the facility at the end of 2025. TransAlta’s cost recovery plan proposed spending an additional $23 million on repairs to continue operating the unit. FERC’s main objection had to do with geographic scope. TransAlta’s recovery plan called for recovering costs from California Independent System Operator (CAISO) and the Southwest Power Pool (SPP), but the DOE’s order requiring operation of the plant was designed to ensure reliability in the Northwest assessment area (Montana, Oregon, Washington, and parts of northern California and northern Idaho). Accordingly, FERC was unwilling to allow cost recovery from CAISO and SPP when the order that precipitated the additional costs only related to the Northwest assessment area. FERC informed TransAlta that it would only approve cost recovery from load-serving entities in the Northwest assessment area. FERC’s decision comes amid a rush of DOE emergency orders requiring the continued operation of coal-fired generating units. Litigation Appeals Court Upholds Washington Hydropower Plant With Caveats In a September 21, 2026, opinion, the Washington Court of Appeals largely upheld a Clean Water Act water quality certification by the Washington Department of Ecology for the Goldendale Energy Storage Project, a proposed pumped-water storage hydropower system adjacent to, but off-stream from, the Columbia River. A nonprofit (Columbia Riverkeeper) and the Confederated Tribes and Bands of the Yakama Nation appealed the certification, contending that it failed to impose necessary conditions and monitoring requirements to protect the water quality of the Columbia River. Most saliently, the plaintiffs argued that the project had the potential to leak 100 acre-feet of water per year into tributaries of the Columbia River. The Court of Appeals broadly rejected plaintiffs’ challenge to the state’s conclusion that “the project was designed not to leak.” That said, the Court of Appeals did reverse on one narrow issue. Specifically, the court determined that the state’s conclusion that “leakage from the project’s tunnels would be monitored and reported” was not supported by the evidence because the certification “does not explicitly require monitoring and reporting to determine whether there is any leakage.” Accordingly, the court remanded the matter to the state to impose monitoring and reporting requirements but otherwise affirmed the certification. Legislative Developments California Legislates Restrictions on Data Center Energy Use and Grid Costs On September 21, 2026, California Governor Gavin Newsom signed seven bills broadly regulating data centers in the state. SB 1168 directed the California Public Utilities Commission to assess the energy used by data centers. It also requires the PUC to pass costs of transmission and distribution upgrades and load increases on to data centers, rather than customers. SB 886 and SB 887 compel data centers to pay for infrastructure upgrade and generation costs, and wildfire mitigation costs, in addition to imposing environmental review. The statutes additionally increase local oversight of data centers. AB 1577 imposes a monthly reporting requirement that requires data centers to supply energy consumption and efficiency data to the California Energy Commission. AB 2383 contains incentives for data centers to use onsite clean energy generation. Finally, AB 2469 and AB 2619 require data center developments to assess water supply and develop a water scarcity plan. The statutes also mandate statewide water reporting as a precondition to obtaining and renewing business licenses.

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The Supreme Court Update - October 14, 2026

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The Supreme Court Update - October 8, 2026

On September 29, 2026, the Supreme Court granted certiorari in one case: Department of Homeland Security v. D.V.D., No. 26-426: This case concerns the Trump Administration’s “third-country removal” procedures, where immigrants are deported to countries not listed in the removal orders. In granting certiorari, the Court granted the Government’s application to stay a lower court decision halting the practice, which will allow third-country removals to continue pending resolution of the case. The issues presented are: (1) Whether the district court had jurisdiction over respondents’ claims; (2) whether the district court had authority to enter class-wide declaratory relief and APA vacatur under 8 U.S.C. § 1252(f)(1); (3) whether the Government’s guidance on third-country removals is unlawful under 8 U.S.C. § 1231(b), the due process clause, or FARRA/CAT and its implementing regulations; and (4) such other questions that the Government determines are appropriate for the proper disposition of the case. On October 1, 2026, the Court granted certiorari in three additional cases: Rhoney v. Barbosa da Cunha, No. 26-104: Immigration officials detained Ricardo Aparecido Barbosa da Cunha—a Brazilian citizen who had lived in the United States for approximately twenty years after entering without inspection—and denied him a bond hearing under 8 U.S.C. § 1225(b)(2)(A). The Second Circuit held that his detention was instead governed by § 1226(a), which permits release on bond, because § 1225(b)(2)(A)’s mandatory-detention requirement applies only to noncitizens apprehended while entering the country or shortly thereafter. The question presented is: Whether 8 U.S.C. § 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like Barbosa da Cunha, are present in the United States without having been admitted. Missionaries of St. John the Baptist, Inc. v. Frederic, No. 25-113: A Catholic religious organization sought to build a shrine to the Virgin Mary on land the organization owned adjacent to its church in Park Hills, Kentucky. Local zoning restrictions prohibited the proposed construction. The question presented is: Whether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under the Substantial Burden Provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a). Marschner v. Marschner, No. 25-1349: Under the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), a veteran’s longevity-based retirement pay can be divided in a divorce, but retirement pay based on disability and retirement pay that was waived to receive disability pay are indivisible. The question presented is: Does the USFSPA require state courts to refuse enforcement of indemnification provisions in a divorce settlement agreement?

Regulatory Affairs Partner Jeff Beelaert Joins Dorsey in Boise

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Regulatory Affairs Partner Jeff Beelaert Joins Dorsey in Boise

Attorney John Cooney Returns to Dorsey in the Finance & Restructuring Group in Minneapolis

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Attorney John Cooney Returns to Dorsey in the Finance & Restructuring Group in Minneapolis

Dorsey Recognized in Chambers UK 2027

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Dorsey’s London Corporate Practice and Partners Earn Chambers UK 2027 Rankings