Shoshone-Bannock Tribes file Blackrock Land Exchange lawsuit
J.R. Simplot Don Plant in Pocatello.
By LORI ANN EDMO
Sho-Ban News
FORT HALL — The Shoshone-Bannock Tribes filed a lawsuit in federal court December 5 against the Department of Interior (DOI), Bureau of Land Management (BLM) concerning the Blackrock Land Exchange with the J.R. Simplot Company.
The case involves an appeal from the August 12 Blackrock Land Exchange Record of Decision the DOI issued to approve a land exchange that will result in the expansion of the Pocatello Simplot Don Plant gypsum stacks located on the on the Eastern Michaud Flats Superfund site.
The land exchange approves Simplot’s acquisition of 719 acres of federal land the BLM manages in exchange for 667 acres of non-federal land Simplot owns.
The Tribes say the federal lands selected for the exchange are part of the Tribes ceded territory and treaty area adjacent to the existing Simplot Don Plant and partially within the Eastern Michaud Flats NPL Superfund site. The non-federal land parcels that Simplot owns are located south of Pocatello in the Blackrock Canyon area.
The Tribes complaint reads for decades the Simplot Company has attempted to secure approval of the land exchange to facilitate continued operation of the phosphate processing activities. The phosphogypsum waste piles were created as a byproduct of Simplot’s activities have resulted in a Superfund site with an NPL designation that continues to pollute the Portneuf River and the Fort Hall Bottoms – an area that is critical for tribal subsistence hunting and fishing as well as tribal cultural and ceremonial practices.
The Tribes say if it is approved, the land exchange would allow Simplot to continue its unchecked pollution of the Fort Hall Indian Reservation.
The complaint says the Fort Bridger Treaty of 1868 promises the Fort Hall Reservation is reserved as the permanent homeland for the Shoshone-Bannock Tribes and it guarantees hunting, fishing and gathering rights to provide for the subsistence of tribal members living on the reservation. The Treaty also includes a promise that the federal government will protect the members living on the Reservation.
If the DOI approves the land exchange it breaches the U.S. government obligations under the Treaty.
The complaint says the EIS (environmental impact statement) recognizes the land exchange will reduce the Tribal treaty right area but does not adequately address the impact of reducing public land available for the exercise of Tribal Treaty rights. “The Fort Bridger Treaty of 1868 guarantees the Tribes right to hunt, fish, gather and conduct grazing on the unoccupied lands of the United States. The land exchange reduces those treaty lands in an area adjacent to the Fort Hall Reservation and the EIS does not conduct an adequate analysis of this impact and mitigation of the treaty rights reduction.”
The complaint says the challenged land exchange violates the guarantee in Article II of the Fort Bridger Treaty of an “absolute and undisturbed use and occupation” of the Fort Hall Reservation. It also cites the promise of off reservation Treaty rights reserved in Article IV – the Tribes will make said reservation their permanent home and they will make no permanent settlement elsewhere. The Tribes are permanently situated on the Fort Hall Reservation protecting the lands, water and air of the Reservation is of critical importance. Permitting ceded lands to be exchanged by the federal government to increase the size of and pollution from a superfund site violates the Treaty guarantee of a permanent homeland on the Fort Hall Reservation.
It further says at the heart of this land exchange is the interest of a private company seeking an accommodate to continue industrial operations. “This interest must be viewed in light of the Tribal interest in preserving a permanent homeland for tribal members who will reside on the Reservation land forever.” Expansion of industrial operations, which have resulted in an existing and unremediated superfund site threatens and directly impacts the Tribes health and welfare, economic security, political integrity and the Tribes ability to plan for any new residences in affected areas because of enhanced risks to groundwater, air and other pollutants beyond the foreseeable future. Facilitating the continued operation of the Simplot Don Plant through the challenged land exchange also extends the contamination to the Fort Hall Bottoms area that is a vital location for tribal member subsistence hunting, fishing and gathering, as well as important and sensitive cultural practices including the Sundance.
The complaint says in approving the land exchange the BLM has failed to live up to its trust responsibility and obligations imposed by the executive orders referenced to protect Indian tribal interests.
An Associated Press story said Simplot is a privately held multinational agricultural company engaged in a wide array of activities including seed production, farming, ranching, frozen-food processing and gene editing.
Josh Jordan, a Simplot spokesman, said in an email to The Associated Press the company has invested millions of dollars at its plant in Pocatello to improve the environment. He also said the plant is a major community employer with under 400 employees. He didn’t address specifics to the lawsuit the Tribes filed.
The Tribes have consistently opposed the land exchange and believes Simplot should comply with existing environmental regulations, clean up existing contamination and not be permitted to expand its pollution activities through the challenged land exchange. The Tribes contend the EIS process was rushed and failed to address important tribal concerns.
