Fredericks Peebles & Morgan LLP
ads@blueearthmarketing.com   712.224.5420

Environment | Law
9th Circuit ruling in Shoshone-Bannock case


The 9th Circuit Court of Appeals issued a ruling today in a dispute between the Shoshone-Bannock Tribes of Idaho and the world's largest producer of phosphorous.

The federal government and FMC Corporation entered into an agreement over the operation of a phosphorous plant on the Fort Hall Reservation. The consent decree, which was approved in federal court, required FMC to pay $1.5 million in annual fees to the tribe and apply for permits under tribal law.

When FMC stopped paying the fees after shutting down the plant, the tribe went to court to enforce the consent decree. In March 2006, a federal judge sided with the tribe and noted that FMC entered into a consensual relationship with the tribe and agreed to tribal jurisdiction.

On appeal, the 9th Circuit reversed. The ruling, however, did not focus on tribal jurisdiction over non-Indians but on legal standing.

While the tribe is mentioned throughout the consent decree, the 9th Circuit said the tribe is not a party to it. The court said other provisions of the agreement do not give the tribe standing to enforce it.

The 9th Circuit said the tribe could seek to have the federal government enforce the consent decree. The court also noted that FMC plans to apply for tribal permits for ongoing work at the plant.

As for the jurisdiction over non-Indians issue, "A key dispute (and one that continues through this appeal) is whether FMC’s operations remain subject to tribal jurisdiction," the decision stated.

9th Circuit Decision:
US v. FMC Corporation (June 27, 2008)

Lower Court Decision:
US v. FMC Corporation (March 6, 2006)

Related Stories:
Shoshone-Bannock Tribes win sovereignty ruling (3/14)