FMC aerial view.
By LORI ANN EDMO
Sho-Ban News
FORT HALL — The Shoshone-Bannock Tribes prevailed in its case against the FMC Corporation after the U.S. Supreme Court refused to review the case on Monday.
That means the 2019 Ninth Circuit Court of Appeals decision stands ruling the Tribes have regulatory and adjudicatory jurisdiction over FMC to impose the annual $1.5 million permit fee for storage of waste on the Fort Hall Indian Reservation.
The Ninth Circuit panel affirmed the district court’s judgment enforcing a Shoshone-Bannock Tribal Court of Appeals decision that ruled the FMC Corporation must pay an annual use permit fee for storage of hazardous waste on fee lands within the Fort Hall Indian Reservation as required under a consent decree settling a prior lawsuit brought against FMC by the Environmental Protection Agency under the Resource Conservation Recovery Act.
Fort Hall Business Council Chairman Devon Boyer said in a press release, “The Tribes are very pleased that the Supreme Court of the United States did not find any merit to FMC’s appeal and that FMC is finally required to honor their agreement to comply with Tribal jurisdiction.”
“This decision helps of all of Indian Country in efforts to protect Tribal lands and natural resources as well as the betterment of all people of southeast Idaho,” Boyer continued. “When industry enters into a voluntary relationship within tribal lands, they must comply with tribal regulations even when the EPA and or states may have their own regulatory presence.”
FMC operated an elemental phosphorous plant for over 60 years on fee land within the Fort Hall Indian Reservation boundaries producing an approximate 22 million tons of hazardous waste that is currently stored on the reservation. The waste is radioactive, carcinogenic and poisonous according to the ruling. In 1998, FMC agreed to pay the annual hazardous waste storage fee but stopped in 2002 after the plant closed. The Tribes filed a lawsuit to collect the fee after FMC refused. The Tribes prevailed in Tribal Court and FMC appealed to federal court. The District Court affirmed the Tribal Court judgment against FMC and the Ninth Circuit affirmed it.
According to the Ninth Circuit ruling, the court found jurisdiction exists under both Montana exceptions — under the first exception, a tribe may regulate the activities of nonmembers who enter into consensual relationships with the tribe or its members. Under the second Montana exception, a tribe retains inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security or the health or welfare of the tribe.
The Ninth Circuit panel held under the first Montana exception, the Tribes had regulatory jurisdiction to impose the permit fees because FMC entered into a consensual relationship with it signed a permit agreement with the Tribes. The panel held that FMC’s conduct of storing hazardous waste on its fee land with the reservation fell within the second Montana exception. The panel said the district court erred in refusing, as a matter of comity, to enforce the judgment of the Tribal Court of Appeals under the second exception. The panel also held that the Tribal Court of Appeals did not deny FMC due process through a lack of impartiality.
FHBC member Lee Juan Tyler said the decision furthers the Tribes efforts to protect the water and natural resources of the Reservation and the surrounding communities. “This is a victory for Mother Earth and the Tribes ability to protect our water and environment.”
FHBC member Nathan Small acknowledge the diligent work of Tribal leaders and staff on the case, “We are grateful for the leadership and teamwork completed by our prior Tribal Council members, our Land Use Policy Commissioners, Environmental Waste Management Program staff, contractors and attorneys since 1998.”
FMC spokesman Paul Yochum said the company is disappointed the U.S. Supreme Court has declined to hear the case FMC v Shoshone-Bannock Tribes. “While we believe our arguments were legally correct, we accept the decision of the U.S. Supreme Court.”