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FMC Corp. v. Shosone-Bannock Tribes

ELR Citation: 47 ELR 20122
Nos. 4:14-CV-489-BLW, (D. Idaho, 09/28/2017) (Windmill, J.)

A district court held that a tribal appellate court had the authority to impose permit fees on an operator of a phosphorus production plant. The plant sits on 1,450 acres of land lying mostly within Shoshone-Bannock Fort Hall Reservation, and produced 22 million tons of waste stored on the reservation. EPA declared the site a Superfund site and charged the operators with violating RCRA. The Agency ordered the plant operators to obtain tribal permits as part of a settlement. The tribe set the permit at $1.5 million a year if the operators consented to tribal jurisdiction, which they did. The operators challenged the permit fees in tribal court arguing that the waste had done no harm to the environment; the tribe presented evidence that the waste was highly toxic and could not be moved off-site. The tribal court issued a judgment against the operators and the fee was left in place. The district court held that the tribal court had jurisdiction based on the threat the waste posed and the settlement agreement the operators had with EPA. The judgment was enforced.