Tribal Appellate Court says FMC must pay Tribes $1.5 million a year

by Daniel Moore

Press Staff Writer


The former FMC phosphate plant does have to get a waste permit from the Shoshone-Bannock Tribes, costing $1.5 million a year, said a three-judge Tribal Appellate Court after two weeks of deliberation.

A previous tribal court in the lawsuit between the Shoshone-Bannock Tribes and FMC sided with FMC. The Tribes appealed the decision to the appellate court, the highest court run by the Tribes. If FMC appeals the tribal court’s decision, it will appeal to federal district court. FMC is likely to appeal, said FMC attorney Maureen Mitchell.

“Federal courts will be the ultimate decider in who has jurisdiction in this case,” Mitchell said.

Past U.S. Supreme Court decisions set precedent that tribes have jurisdiction over private companies if two criteria are met. Those two criteria are when the companies have previously voluntarily entered into agreements with the tribes and when the activity affects the health and welfare of the tribe. The Tribal Appellate Court ruled that in the case of FMC, both applied.

The FMC site is currently in the process of capping and treating contaminated soil following a plan ordered by the Environmental Protection Agency. The Tribes want the waste removed, which the Tribes estimate to be almost a million tons of contaminated soil besides millions of tons of phosphorus slag. FMC argued that the removal would be costly and dangerous, if not impossible.

Fort Hall Reservation Business Council Chairman Nathan Small gave testimony during the trial.

“This case is not about capping, excavation, and so forth. It’s about contaminated water, a contaminated ecosystem and threatened hunting and gathering subsistence for my people. The ground is not pure no more and the feeling is not good, but is poisoned,” Small said.

The site is currently not a direct threat to tribal well being, argued FMC attorneys in the trial, said FMC attorney Maureen Mitchell, and the steps authorized by the EPA will make the threat even less.

“Future remedial actions will further reduce any potential threats that could come,” Mitchell said.

The judges ruled that FMC must pay for a waste permit fee as long as waste exists on the reservation. FMC previously had paid the Tribes $1.5 million per year for a waste generation fee that was not attached to a permit, but stopped when the plant closed.

The three judges on the appellate court were Peter McDermott, a former state district judge, Vern Herzog, a Pocatello trial attorney and John Traylor, a Boise area attorney.

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