Here is a staggering example of greed, corporate arrogance, justice delayed, and environmental racism.
Dating back to 1949, the FMC Corporation and its predecessors ran a phosphorus mining and processing plant on land within the Shoshone-Bannock Fort Hall Reservation in Idaho, the largest such operation in the world. Phosphorus is a key ingredient in such things as fertilizer. The mining and processing phosphorus also generates toxic waste. Short-sighted business practices resulted in contamination of tribal lands and water. The U.S. government declared it a Superfund site in 1990 and FMC ceased operations in 2001.
According to a 1998 deal struck by the Fort Hall Reservation and FMC, the company agreed to a $1.5 million annual fee for storing its hazardous waste on the Reservation lands. A mere three years later, when FMC stopped actively processing phosphorus, the company stopped paying its annual fee, according to court records. (FMC’s magical thinking seemed to be: Now that we closed the plant, we are no longer responsible for the ruin we left behind.)
The Shoshone Bannock Nation fought FMC in tribal and U.S. courts for years and won an important victory this month, with a decision that upholds tribal sovereignty. Here’s the story.
The U.S. Ninth Circuit Court of Appeals released its decision Nov. 15. Here’s how the decision describes FMC’s toxic legacy:
Hazardous waste from the plant’s 52 years of operation contaminates FMC’s land on the Reservation. Approximately 22 million tons of hazardous waste are stored in waste storage ponds on the site. Some storage ponds are capped. Some are not. Some ponds are lined. Some are not. Phosphorus, arsenic, and other hazardous materials contaminate an additional 1 million tons of loose soil and ground water throughout the site. Millions of tons of slag containing radioactive materials contaminate the site. Somewhere between twenty one and thirty railroad tanker cars containing toxic phosphorous sludge are buried on the property. There is no lining underneath the tanker cars and no cap above them.
I first learned of this story from an Indian Country Today article: Shoshone-Bannock Tribes win regulatory case on hazardous waste storage. Here’s how that article characterizes the risks to Fort Hall residents:
The site is near the Portneuf River and Fort Hall Bottoms where groundwater contamination threatens the “gathering and subsistence fishing, hunting and gathering by tribal members at the River, as well as the Tribes’ ability to use this important resource as it has been historically used for cultural activities.”
The lawsuits traveled through federal district court, tribal court system, and the federal Court of Appeals.
In 2014, the Shoshone-Bannock Tribal Court of Appeals issued a final judgment, holding FMC liable for the unpaid annual use permit fees, attorneys fees and costs, a total judgment of $20.5 million.
FMC appealed to the U.S. Court of Appeals, arguing that the Tribe lacked jurisdiction over the company, and that the company was denied due process.
The recently released U.S. Court of Appeals decision affirmed the Tribal Court of Appeals’ decision. It also affirmed that “the tribal court had regulatory and adjudicatory jurisdiction over the Shoshone-Bannock Tribes’ suit against FMC.”
The Indian Country Today story offered this closing quote from a news release:
“Today is a great day for the Shoshone-Bannock Tribes,” said Tribal Chairman Ladd Edmo in a news release. “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.”
An appeal to the U.S. Supreme Court still is possible.
Comment: It’s not a story unique to Idaho. Environmental problems are often dumped on Indigenous and other marginalized communities. Locally, consider how the spent nuclear waste casks still are stored next to the Prairie Land Dakota Community.
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