Indian Country Today

The Shoshone-Bannock Tribes can continue charging food and chemical conglomerate FMC Corp. a fee of $1.5 million a year for storing hazardous waste on reservation land.

The U.S. Supreme Court on Monday declined to hear a challenge to a lower court decision in the tribes’ favor.

In 2019, the 9th U.S. Circuit Court of Appeals ruled that the Shoshone-Bannock Tribes could charge FMC a fee for storing the waste from its now-closed phosphorus processing plant on the Fort Hall Indian Reservation in Idaho. The ruling by the three-judge appeals court panel said the tribes have jurisdiction over the company.

Chairman Devon Boyer said he was pleased with the high court's decision and that "FMC is finally required to honor their agreement to comply with tribal jurisdiction."

"This decision helps 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 said in a statement. 

(Previous story: Shoshone-Bannock Tribes win regulatory case on hazardous waste storage)

Gregory G. Garre, an attorney for FMC Corp., previously argued that the company shouldn’t have to pay the fee. He told the 9th Circuit panel that the tribes’ demand could be in perpetuity because the waste from the former production plant is now a Superfund site, and a safe cleanup could take decades.

FMC had paid the fee from 1998 to 2001 after reaching an agreement with the tribe. But it quit doing so in December 2001 when the plant stopped its phosphorus operations.

The tribes then sued in tribal court. Eventually the case reached a tribal appeals court, which found the money was owed because FMC’s storage of hazardous waste on the reservation created an “ongoing and extensive threat to human health” and put important cultural practices at risk. The site is near the Portneuf River and Fort Hall Bottoms, where groundwater contamination threatens subsistence fishing, hunting and gathering by tribal members, the court said.

The 9th Circuit then held that the tribal court had regulatory and adjudicatory jurisdiction over the Shoshone-Bannock Tribes’ lawsuit against FMC under two “Montana exceptions" involving tribal authority over non-Indians. The appeals court said the tribe has inherent power when the actions of a company are a threat to the tribe's economic security or the health and welfare of citizens.

Approximately 22 million tons of hazardous waste is stored, according to the Shoshone-Bannock Tribes. 

On Monday, the Supreme Court denied the company’s petition for a review of the 9th Circuit’s decision.

On social media, some cheered the high court's decision to not hear the case. 

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The updated story includes a comment from Chairman Devon Boyer and social media reaction. 

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