By LORI ANN EDMO
Sho-Ban News
FORT HALL — The J.R. Simplot Corp. appealed the Blackrock Land Exchange decision to the Ninth Circuit Court of Appeals after the federal district court ruled twice in favor of the Shoshone-Bannock Tribes.
In March 2023, a federal district court ruled that a proposed land exchange between the Bureau of Land Management (BLM) and the Simplot Corporation violated federal law and the government’s trust responsibility to protect the Shoshone-Bannock Tribes interests in lands that were ceded.
According to a Tribal Public Affairs story from 2023, the case involved the Tribes challenge to a BLM Record of Decision (ROD) in 2020 that approved the land exchange that would have resulted in the expansion of the Pocatello Don Plan phosphogypsum stacks located on the Eastern Michaud Flats (EMF) NPL Superfund site. The ROD was issued following publication of a final Environmental Impact Statement on May 15, 2020.
The land exchange approved Simplot’s acquisition of 719 acres of federal land managed by the BLM in exchange for 667 acres of non-federal land owned by Simplot. The federal lands selected for the exchange are on Howard Mountain adjacent to the existing Simplot Don Plant and partially within the Eastern Michaud Flats NPL Superfund site. The non-federal land parcels owned by Simplot are located in the Blackrock Canyon area south of Pocatello.
In the summer of 1987, the EPA detected elevated levels of heavy metals in sediments of the unlined ponds that served both the Simplot and former FMC phosphate processing operations and in wastewater at the Simplot Pocatello Don Plant facility. In addition, arsenic, cadmium, and selenium were detected in monitoring wells in the deep confined aquifer. In all, 2,530 acres of land surrounding the phosphate facilities were found to have contamination levels of concern.
The Simplot Pocatello Don Plant was classified as part of the Eastern Michaud Flats (“EMF”) Superfund site located adjacent to the Fort Hall Reservation, the Portneuf River, and the Cities of Pocatello and Chubbuck. The EMF site was listed on the National Priority List (“NPL”) in 1990.
The National Congress of American Indians (NCAI) through the Native American Rights Fund filed an amicus (friend of the court) brief in support of the Shoshone-Bannock Tribes in the Ninth Circuit case.
The brief emphasizes the importance of a trust relationship between the tribal nations and the United States that requires the federal government to act in good faith and fully honor its promises to tribal nations.
“The Shoshone-Bannock Tribes ceded vast tracts of their homelands to the United States, but they did so pursuant to an agreement that reserved crucial rights for the Tribal Nations and their citizens,” said NCAI Executive Director Larry Wright, Jr. in a NARF press release. “Congress ratified that agreement and defined limited ways that the land could be removed from their use. It is imperative that the United States honors its legal and moral obligations by upholding the terms of this agreement.”
“The Shoshone-Bannock Tribes have long fought to protect their homelands and their treaty rights,” said NARF Staff Attorney Morgan Saunders. “NARF is proud to stand with them and to echo their call that the United States must respect the sovereign-to-sovereign trust relationship that exists between the government and all federally recognized Tribal Nations. The United States is not allowed to change or reinterpret the terms of federal law and its agreement with the Shoshone-Bannock just because it is convenient for them.”
A date for the Ninth Circuit hearing has not yet been determined said Tribal Attorney Bill Bacon.
The Tribes filed the lawsuit in 2020 to stop the federal government’s illegal exchange of their homelands. The Tribes right to use the lands is protected under an 1898 agreement and codified in law under what is known as the 1900 Act.
The land within the land exchange is entirely within the Tribes aboriginal and ceded territory within the original Fort Hall Indian Reservation. The same federal court first ruled the exchange was illegal in 2011.