## Facts

- FMC Corporation, a nonmember corporation, operated an elemental phosphorus plant on non-Indian fee land located within the Fort Hall Reservation in Idaho.
- Over decades, FMC generated approximately 22 million tons of hazardous waste stored on the reservation; the waste was described as radioactive, carcinogenic, and poisonous.
- The Environmental Protection Agency designated the area as a Superfund site, and federal enforcement under environmental law led to a consent decree requiring FMC to obtain tribal permits for facility use and hazardous-waste storage.
- FMC and the Tribes negotiated a tribal use permit under which FMC agreed to pay $1.5 million per year; FMC paid from 1998 to 2001.
- FMC ceased operations in 2001 but continued storing waste on the reservation and refused to pay tribal permit fees beginning in 2002.
- The Tribes sued in tribal court for unpaid permit fees; after jurisdictional litigation, the tribal appellate court held the Tribes had authority under *Montana* and awarded $19.5 million for unpaid fees from 2002–2014.
- FMC filed in federal district court to block enforcement, arguing the tribal courts lacked jurisdiction over a nonmember on fee land and that the proceedings denied due process.

## Issues

1. Whether the Tribes had civil regulatory and adjudicatory jurisdiction over FMC’s on-reservation fee-land conduct sufficient to support the tribal-court judgment for unpaid permit fees.
2. Whether tribal jurisdiction was authorized under the first *Montana* exception (consensual relationships), the second *Montana* exception (conduct threatening tribal health, welfare, political integrity, or economic security), or both.
3. Whether the tribal-court proceedings denied FMC due process based on alleged lack of judicial impartiality.

## Decision

- The Ninth Circuit affirmed enforcement of the tribal appellate court’s judgment.
- The court held tribal regulatory and adjudicatory jurisdiction existed under both the first and second *Montana* exceptions.
- The court rejected FMC’s due process challenge, concluding FMC failed to show a lack of impartiality or procedures inconsistent with basic fairness.
- The tribal-court money judgment for unpaid permit fees was enforceable in federal court.

## Legal Principles

- Under *Montana v. United States*, tribes generally lack civil authority over nonmembers on non-Indian fee land within a reservation, subject to limited exceptions.
- First *Montana* exception: A tribe may regulate and adjudicate disputes arising from nonmember activities when the nonmember enters a consensual relationship with the tribe (e.g., contracts or permit arrangements) and the regulation/judgment is tied to that relationship.
- Second *Montana* exception: A tribe may exercise civil authority over nonmember conduct on fee land within the reservation when the conduct poses a direct threat to, or direct effect on, the tribe’s health or welfare, political integrity, or economic security; serious, ongoing environmental hazards can satisfy this standard.
- Tribal adjudicatory jurisdiction may track tribal regulatory jurisdiction when the dispute arises from regulated conduct within an applicable *Montana* exception.
- A tribal-court judgment is subject to due process review for basic fairness; allegations of bias based solely on tribal judges’ tribal affiliation or governmental role are insufficient without concrete evidence of partiality or unfair procedures.

## Conclusion

The Ninth Circuit upheld federal enforcement of a tribal-court judgment requiring a nonmember corporation to pay unpaid tribal permit fees for continued hazardous-waste storage on reservation land, concluding that the corporation’s permit agreement established consensual relations and the waste posed grave threats to tribal health and welfare, and further finding no due process violation in the tribal proceedings.


FMC Corp. v. Shoshone-Bannock Tribes, 942 F.3d 916 (9th Cir. 2019)