Published November 16, 2019
FORT HALL, Idaho — The 9th Circuit Court of Appeals today ruled unanimously that the Shoshone-Bannock Tribes (Tribes) have both adjudicatory and regulatory jurisdiction to impose a $1.5M annual hazardous waste storage permit fee against the FMC Corporation for storing hazardous waste within the Fort Hall Reservation.
“Today is a great day for the Shoshone-Bannock Tribes! We are very pleased with the 9th Circuit of Appeals ruling. I would like to commend our former Tribal leaders, our Land Use Policy Commissioners, technical staff and legal team for all the years of hard work,” stated Chairman Ladd Edmo of the Fort Hall Business Council.
In 1998, FMC agreed to pay annual storage of hazardous fees but that stopped in 2002 after FMC closed its plant in Pocatello, Idaho. When FMC refused to pay the agreed upon annual hazardous waste storage fee the Tribes filed a lawsuit to collect the fee. The Tribes prevailed in Tribal court and FMC appealed to federal court. The Federal District court affirmed the Tribal Court Judgement against FMC, and now the 9th Circuit Court of Appeals affirmed the District Court award.
This ruling means FMC must pay the Tribes but this does not include interest for past storage fees every year thereafter as long as the hazardous waste is stored within the reservation. According to the Tribes Waste Management Act, the storage fees are to be used for environmental monitoring, compliance, and cleanup.
FMC’s storage of millions of tons of hazardous waste on the Reservation “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare” of the Tribes to the extent that it “imperil[s] the subsistence or welfare” of the Tribes. This fact was recently confirmed by the Ninth Circuit Court of Appeals but has long been communicated by the Tribes technical staff working to clean up the site.
“The waste at FMC is toxic, reactive and presents a risk to our community. We are thankful the Ninth Circuit Court of Appeals recognizes this risk and recognizes our jurisdiction. We can now work to fully implement our Hazardous Waste Main Act Regulations and develop safety monitoring and notification networks,” says Kelly Wright, the Tribes Environmental Waste Manager.