FORT HALL — A three-judge Shoshone-Bannock Tribal Appellate Court has ruled that the tribes have civil jurisdiction of the FMC operations located with reservation boundaries just west of Pocatello based on potential threats to the health and welfare of tribal members.

Earlier, the Tribal Appellate Court had ruled the Shoshone-Bannock Tribes already had jurisdiction based on FMC entering into a consensual agreement to pay a waste storage fee for waste stored at the elemental phosphorous plant site. FMC paid that $1.5 million per year fee from 1998 until the plant closed in 2001.

Appellate judges for the tribes that made Tuesday's ruling are retired Idaho District Judge Peter D. McDermott, Pocatello attorney Vern Herzog and Boise attorney John Traylor.

After more than two weeks of litigation, the Tribal Court of Appeals issued a 32-page finding. The ruling requires FMC to pay the tribes $1.5 million a year for a waste storage permit for as long as the waste remains within the reservation.

The ruling doesn't impact an agreement between FMC and the federal Environmental Protection Agency that calls for an estimated $57 million in cleanup efforts at the FMC site to begin this year.

The waste stored on the FMC property includes millions of tons of phosphorous slag, at least 16 tons of elemental elemental phosphorous, almost a million tons of contaminated soil, and many other hazardous wastes, according to the tribes.

FMC consultant Paul Yochum, who served as plant manager for the Power County facility at the time it ceased production, said the company is disappointed in the tribal court's decision.

“The decision can be appealed,” Yochum said.

That appeal would be filed in U.S. District Court. The company also appealed the decision regarding jurisdiction stemming from its consensual agreement to pay waste storage fees, but lost that appeal in federal District Court.

The jurisdictional issues involve the U.S. Supreme Court's Montana v. U.S. decision which sets the legal groundwork for exceptions that give tribal governments control over the activities of non-tribal entities within the boundaries of an Indian Reservation.

Prior legal agreements for tribal permitting and issues impacting the health and welfare of the tribe are two of those exceptions.

During the appellate hearings, Fort Hall Business Council chairman Nathan Small and tribal members Claudeo Broncho and Virginia Monsisco offered testimony about the Eastern Michaud Flats Superfund Site.

“This case is not about capping, excavation, etc.  It’s about contaminated water, a contaminated ecosystem and threatened hunting and gathering subsistence for my people,” Small testified. “That portion of land is no longer cherished by the people. The ground is not pure no more and the feeling is not good, but is poisoned.”

Broncho testified that some time ago he witnessed a duck in flight spontaneously ignite after flying out of one of the uncovered FMC ponds. Monsisco offered testimony on the importance of cultural burials and importance of the land and water.

In a closing statement offered by co-counsel for the tribes, Paul Echo Hawk said the land impacted by FMC's operation is tribal land.

“The land is not good any more, the fish and wildlife is not the same, Echo Hawk said.

  Attorneys representing the Shoshone-Bannock Tribes included general counsel Bill Bacon and Echo Hawk of Kilpatrick Townsend & Stockton LLP  of Seattle, Wash. The supporting legal team included tribal environmental manager Kelly Wright, tribal consultant Susan Hanson, environmental coordinator Monsisco and Rebecca Horst of Kilpatrick Townsend & Stockton. 

The FMC legal team was represented by Ralph Palumbo, Maureen Mitchell and Dave Heineck of Summit Law Group of Seattle, Wash., and Lee Radford of Moffatt, Thomas, Barrett Rock & Fields law firm in Idaho Falls.