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United States v. FMC Corp.

ELR Citation: 38 ELR 20154
Nos. No. 06-35429, (9th Cir., 06/27/2008)

The Ninth Circuit held that Native American tribes lacked standing to enforce a consent decree entered into by a mining company and the federal government for Resource Conservation and Recovery Act violations at the company's phosphorous plant located on land within a tribal reservation. In addition to entering into a consent decree with the federal government, the company agreed to pay the tribes $1.5 million per year in lieu of applying for certain tribal permits. In 2001, the company ceased some of its mining operations, stopped making its annual payments to the tribes, and refused to apply for certain tribal permits. A lower court ruled that the tribes may enforce the consent decree as third-party beneficiaries. The consent decree, however, contains a paragraph that disclaims any intent to grant rights to third parties. When a consent decree explicitly provides that a third party is not to have enforcement rights, that third party is considered an incidental beneficiary. And incidental third-party beneficiaries may not enforce consent decrees; only intended third-party beneficiaries may. The lower court's ruling was therefore reversed.