FMC Corp. v. Shoshone-Bannock Tribes, No. 17-35840 (9th Cir. 2019)Annotate this Case
The Ninth Circuit affirmed the Shoshone-Bannock Tribal Court of Appeals' judgment ruling that FMC must pay an annual use permit fee for storage of hazardous waste on fee lands within the Shoshone-Bannock Fort Hall Reservation pursuant to a consent decree settling a prior suit brought against FMC by the EPA under the Resource Conservation and Recovery Act (RCRA).
The panel held that the judgment of the Tribal Court of Appeals was enforceable pursuant to the two exceptions under Montana v. United States, 450 U.S. 544 (1981). First, a tribe may regulate the activities of nonmembers who enter into consensual relationships with the tribe or its members. Second, a tribe retains inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. In this case, the panel held that the Tribes had regulatory jurisdiction to impose the permit fees because FMC entered into a consensual relationship when it signed a permit agreement with the Tribes. Furthermore, FMC's storage of millions of tons of hazardous waste on the Reservation fell within the second Montana exception. Finally, the panel held that the Tribal Court of Appeals did not deny FMC due process through a lack of impartiality.