A three Judge Appellate Court heard more than two weeks of litigation before ruling in favor of the Shoshone-Bannock Tribes that concluded the conduct of the FMC corporation: “threatens or has some direct effect on the political integrity, the economic security, and the health or welfare of the tribe.”
Judge Peter McDermott (former State District Judge), Judge Vern Herzog (local trial attorney), and Judge John Traylor (Boise area attorney) all non-Indian judges ruled that SBT have “civil jurisdiction over the FMC corporation based on the Montana second exception (non-Indian’s activities on fee land within the reservation threatens the health and welfare of the tribes),” according to a SBT press release.
The FMC corporation had paid the tribe $1.5 million per year from 1998 to 2001 (when the plant closed) as part of a consensual agreement to pay a waste storage fee according to the Idaho State Journal.
The recent SBT victory requires FMC to pay $1.5 million a year to the tribes for as long as waste remains within the 870 square mile reservation. Currently, there is millions of tons of phosphorous slag, at least 16 tons of elemental reactive and ignitable elemental phosphorous, almost a million tons of contaminated soil, and many other hazardous wastes located on the FMC property the release states.
The Journal reports that the new ruling will have no impact on an agreement FMC has with the Environmental Protection Agency that calls for an estimated $57 million in cleanup efforts that are scheduled to begin this year.
Fort Hall Business Council Chairman Nathan Small testified before the court, where he said, “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. 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.”
Small’s testimony was accompanied by that of Claudeo Broncho, tribal member and former councilmember, who shared a story of witnessing a duck spontaneously ignite after flying out of an uncovered FMC pond.
Virginia Monsisco testified on the importance of cultural burials and importance of land and water, the release states.
FMC consultant Paul Yochum told the Journal, “The decision can be appealed.”
Paul Echo Hawk, the tribes co-counsel, in a closing statement said, “This is the Shoshone-Bannock Tribes land. The only land they have left. The land is not good any more, the fish and wildlife is not the same (in that area).”