will be for decades if not centuries that judgment cannot be enforced by the federal courts for two independent reasons st the tribes lacks jurisdiction to impose the fees and enter the judgment it is and nd f m c was deprived the minimum protections of due process in the tribal court proceedings that resulted in that judgement i'd like to begin with the jurisdictional issue the supreme court and this court have repeatedly made clear that tribal jurisdiction over non members for conduct or use on non indian feel land is extremely limited for three fundamental reasons that jurisdiction did not exist in this case st any agreement that  product of a record tory process cannot as a matter of law as stablished the kind of consensual commercial relationship that the supreme court has repeatedly held is required to invoke the st exception in a montana  waste that is the subject of an e p a approved remediation plan that this court itself has held as protective of human health and the environment cannot as a matter of law establish the kind of existential threat that the supreme court has held is required to invoke the nd montana exception and rd even if there were some basis to find some jurisdiction of some kind the imposition of a one million five  annual permit fee is the epitome of the kind of in for a penny in for a pound analysis that the supreme court has categorically rejected that the operation of if in seize processing plant  accurately describing it on its feet land but within the exterior boundaries of the show they require an agreement between f m c and the tribe didn't require agreement your honor there were there was in employment relationship there were mineral leases pertaining to the the mining of phosphorous on the under the tribes lands but the tribes jurisdiction to to go into  i'm asking if the about the nature of the relationship right in good times when your client was operating the phosphorous plant and the tribe had said and was receiving payments from your client was that the result of a contractual relationship no your honor they were receiving payments pursuant to the alleged agreement in this case there were employment relationships and there was you know an effort certainly an effort to get along in writing i'd there weren't payments under agreements in place at that time but that relationship your honor one could think of as a commercial relationship whereas here the relationship issue is purely regulatory the tribes attempts to come to come to f m c to demand permits for f m c storage disposal of waste on it's its property and that's fundamentally different than the kind of consensual commercial relationship that the supreme court recognized in montana and that's the fundamental legal problem with the jurisdictional assertion in this case i mean i'm not sure i've really understood yet your answer to judge hawkins question during probably a good way to say it is doing good there during the good times yeah what sorts of contractual relationships existed between your client and the tribe well there were  employment relationships with with individual tribal members and in any other contractual relationship there were leases dealing with the mining of phosphorous on indian lands which all of those had an expired by the time of the events any other country actual operation ships i don't believe so your honor i mean that those are in the context of the commercial operation of the plant and this case deals only with there it where there are any contractual relationships with respect to the operation of the plant or the storage of the waste no and no and i think it that this court had a decision several years ago which involved employment relationships in the tribes effort to regulate employment and there were the sorts of consensual commercial relationships there the lease is in other contracts and there discussed in that court's opinion but none of those agreements were in place during the events at issue here and the events that issue here deal exclusively with the waste on the land after the plant has been dismantled so the e p a at some point comes in and says there's a problem with the storage of spent phosphorus  whereby the tribe will be paid some funds was that correct that the tribe could be reimbursed funds for monitoring in connection with a  frame at the best way i know how and that went on for a period of time well it would go on for a period of time is there a yes or no in your vocabulary yes if you're did go on for a time bit if i could describe the relationship as i understand it get to that in a minute it went on for a time and at some point in time looks like around the time your client shut down active operations of the plant it stopped making the payments however they arose your honor yes but we're i think we're talking about two different payments or at least we are in my mind they're the payments at issue in this case the one million five hundred thousand dollars annual  c did not pay those pursuant to the consent decree they were not required by federal law that's that's the subject of this dispute the payments that i referred to earlier were simply in connection with the red cross a consent decree approved by this court that the tribe is reimbursed for any appropriate expenses there but not pursuant to any agreement and issue in this case the conception in this case is that the tribal courts had no jurisdiction over these matters yes or who did  and force the consent decree in a decision upheld by this court the court held that the tribe was not a party to that create was not a rd party beneficiary to that korean could not enforce that to create the tribe was a part of the discussions that resulted and this is the consent decree and to be clear the tribe all along has has opposed leaving the waste that was disposed on f m sees land and has sought a different remedy but the world's foremost environmental expert looked at this  concluded that the appropriate remediation was to leave the waste on site and to treat it extensively as f m c has done this court upheld that plan in in a decision in which the court found that it was protective of human health in the environment and  not finding which no one has asked this court to consider to have a human health environment given the circumstances that is to say it was the judgment that it was safer to leave it there than to move it it was the court found was protective of human health in the environment and look this case one doesn't have to speculate here this case that the waste is been on f n c site for seventy years and yet there's no measurable proof of any member measurable harm the minute let's talk about the st exception which is where judge when miller really rested most of his decision which is as well you entered into a voluntary agreement you entered into a contract you consented your argument is the tribe wasn't doing the regulating the tribe was taking advantage of the situation that you were in and put by the e p a well i why is that not a valid concern with respect i would disagree with that that the district court found that the consent decree required f m c to get permits from the tried but that is incorrect as a matter of law all the consent decree provide in this was in paragraph eight of the decree would was that f n c would it would require any would obtain any permits that were actually required well if united it will if you weren't sure that's what it was like well we specifically say it was a matter for us your honor what we're saying is that this is not the kind of consensual commercial relationship that the support that the supreme court has described in the montana case and the reason why is because when a regulator comes to you and says you need to agree to these permits it's a it's a fundamentally different situation than a mom member decided to go onto the onto the reservation or indian property and to fail him self benefits such as doing business with the tribe of demanded that we get permits from the tribe that unites what did they demand the e p a expects compliance with the consent decree the e p a did not take a position on whether or not we were required to get permits on it and i'm talking about the consent decree this court held that there was a diligent assertion of record claims that there was a reasonable settlement that was reached and that the settlement that was reached to cap the ponds least leave the waste on site was protective of human health and the environment the united states made clear in that case that the tribes arguments that the consent decree required f m c to get a permit were wrong that the consent decree didn't enlarge or expand the jurisdiction of the tribes and so e p a federal law did not appeals out of this ok well then you and your client agreed to obtain these permits and make payments correct then they agreed to do it this is the most that we agreed to your honor we agreed to make payments for the waste we close the plant we stop making the payments and i want to be clear too that under the supreme court's montana framework even if the court thought that we consented to something that we agreed to something that's not the end of the now says under montana one the supreme court made clear in the plains commerce case that page three hundred and thirty seven dollars that even that the tribe has to come forward and show that the regulation is necessary for tribal self government or internal relations and the tribe can't make that showing here fundamentally for the same reason that the tribe couldn't make it in the montana case and the montana case that the court held that the tribe could make that showing because the fact was you've got a couple of things going here and i want to sort them out one of them is you're construing the agreement to say that your obligation to make a payment ceases when the plant ceases operation and that's a question what did you agree to assuming that the contract or the agreement is judge women viewed it that's not right that is to say you have an obligation after the plant closes that's one question the other question is whether or not it's an agreement that can be enforced and which is i think actually the more difficult or important question for you i mean because  as as you very carefully are pointing out this will last a long time but i have trouble i want to come back to what you said about you did this in order to have a cooperative relationship with the tribe that you weren't  coerced that is that what you mean to say well your honor at the time that we made these agreements is that what you mean to say it sort of is the best i can get really you mean to say what i mean to say is that these this so called agreement was reached a regulatory process in which it one point the tribe the tribe was not doing the regulating was a p a was going to regulate and you came to the tribe and then you in the tribe redesign with respect i would disagree with that ok so what what it seems to me is exactly what happened you and the million dollars a year yeah in fees yeah but they were going to sue us and so we try to work this out because we had a impending practical need to dispose of weight so that was part of the equation too but the more that the broader problem with the tribes position your honor to go to your point about whether or not this whatever it is that anyone thinks was agreed to cannot be established jurisdiction in the montana one is that that agreement was produced through a regulatory relationship the assertion of regulatory power and that's said we agreed to pay my client agreed to pay and my question is who but it wasn't an agreement it did not just here's my answer one it didn't even if you think that we agreed to that that we agreed to you hey just told me you did through a regulatory or really number two even if you think that agreement even if you conclude that there was express consent there you still have to make the separate in korea as to what they had the tribes have to show that that regulation was necessary to the preservation of travel self government and they can't do that because the e p a is here regulating the heck out of that property out of that waste in a plan approved by this court for media in the waste and the same thing happened in montana case page fi and thirteen dollars the court noted that the tribes in that case couldn't show that the regulation of hunting and fishing on fee lands was necessary because the state of montana had always regulated that lands in the same exact thing applies here the tribes can't show that this regulation even if you conclude that there was consent was not necessary to the preservation of self government because e p a is reglan that in a pursuant to a plan that this court has approved and is held as be protective of human health if i could make one point on the due process issue because i do think it's important even if the court believes that there is jurisdiction the courts not enforce a judgment because of the fundamental flaws in the process that we receive and that was indicative of several things one during referred to the supreme court's montana decision as murderous to the indian tribes they said it was a their duty to take a case and mold it mold it to help the tribe if any member of this court made those sorts of comments that would be shocking and everybody would presume that they wouldn't those were replaced because i think the tribe itself realized the problem with those comments but they but the new panel never independently reassessed whether there was jurisdiction under montana want the best they can point to is e r one fifteen and they're all the new panel did was recognize the previous ruling under montana one we asked if they recognized the previous willing and said we're not taking any new evidence on the point they did which is even worse because they didn't even independently consider they just said well no not necessarily meaning as i read one of the complete ways to construe that possibility is this are we we've got the record we don't need new evidence we're not going to interfere with it they look at well that just underscores that they never independently analyzed it your honor they think what that says is it was previously ruled that there was montana one that was that they never independently considered which and that the nd point is that we were denied an opportunity to appeal the montana to ruling because the the there were one sided rulings where they allowed the tribe to put in as much evidence as they would like in montana too but denied us an opportunity to put in additional evidence of montana won and there's the overarching fact that the tribal courts are politically subservient to the business council if you look at the factors that this court applied in the bird decision to find that there was a denial of due process there because of remarks by an attorney i think you have to conclude that we were denied the fundamental work minimum requirements of due process in this proceeding and that's an independent reason why this judgment should not be in force ok thank your honour's you you've used all your time but we will give you a chance to respond if you very much may please the court my name is douglas sanderson i represent the shown band of tribes also present in the courtroom today as tribal chairman nathan small the facts in this case have no parallel in any of the montana case law f m c is storing a staggering quantity of toxic waste on land that sits above the port for ever in the fort hall bottoms that have long been relied on by tribal members for subsistence permanent regulations it has paid nothing since two thousand and one my argument will address the voluntary ness of the agreement the duration of the agreement the nd montana exception norm in jurisdictional cases the tribe asserts jurisdiction as in williams versus levy establishing a tribal court as in morris buster colleville the cases that the supreme court cites to illustrate the st exception where a tax was enacted and then the consensual relationship is formed so that's the norm and there's nothing irregular about it and there's nothing wrong about that order under this circuit water wheel test for determining the existence of a consensual relationship it turns on whether the non indian should have reasonably anticipated that his interactions with the tribe would trigger tribal jurisdiction and that understanding that reasonable anticipation is certainly aided when the tribe st asserts regulatory authority finally the permissibility of a consensual relationship being formed after an  after the ordinance was passed the same facts are present here and i should add that you know much of the waste that is now stored on the property was actually mined under the same leases that were before this court and f m c one as was shown by the testimony at trial nd the agreement that f m c in the go sheeted was voluntary and complains that the tribes had earlier proposed a higher fee and that it had no better alternative than to reach agreement but the higher fee that f m c refers to was never adopted much less imposed on f m c and f m c later negotiated the the disposal of hazardous waste at commercial facilities where the tribes would have to impose their fee for four hundred and forty years before it would equal idaho's one time disposal fee it's also the case that f m c is agreement was voluntary as the district court held in ruling that this was a simple business deal not the product of illegal dresser coersion f m c had painted itself into a corner it had used the reservation as a dump site for over fifty years it had failed to comply with record and the united states was seeking to enforce it against it e p a was willing to work with f m c and reach agreement but said as the district court held go and get permits and f m c agreed to do so it chose to negotiate rather than the problem that it had put itself in a nd the district court correctly held that f m c agreed to pay the fee as long as the store's waste on the reservation in exchange for an exemption from tribal ways permanent regulations the tribal appellate court had earlier so held and that ruling was reaffirmed by the nd panel the determination is made by the tribal courts were made in the with united states and in those discussions f m c the united states and the tribes were all aware that f m c would be required to permanently close the ri and eighty agreement which shows that the parties intended that the agreement would cover all hazardous and non hazardous waste activities on the property the tribes st set out at understanding and initially seeking to limit the agreement to pond seventeen dollars to nineteen dollars f m c is lead negotiator said on june nd the agreement covers the plant and would be paid for the future even if the use of the ponds that was discontinue that by entering into the agreement f m c consented to tribal jurisdiction without a specific consent being required and the waterwheel task of this circuit makes clear that by entering into the consensual relationship the non indian has consented to tribal jurisdiction that has a nexus to the consensual relationship which plainly exists here since there they're basically eleven of the same so your answer is no specific mechanism saying this payment covers all hazardous and non hazardous waste activities on the reservation those activities are continuing and because they're there the require a closure and compliance there is nothing improper about a non indian entering into an agreement with the tribe that remains in effect for as long as the activity it authorizes continues nor is there anything improper about a tribe agreeing to limit its exercise of sovereign authority to achieve that purpose and that's what happened here and that makes the cases on which f m c realize where the parties didn't intend any minimum duration that makes those cases inapplicable turning to the nd exception your honor the district court correctly held at f m c as waste poses a catastrophic threat to travel governance cultural traditions health and welfare relying on the tribal appellate court's nd montana exception decision here to the district the findings of fact on which the tribal courts ruling is based are not clearly erroneous that ruling and district court's ruling were correct for the following reasons st the waste present on the site is radioactive carcinogenic poisonous and massive in size phosphorus permeates the property the ground water is contaminated with phosphorus arsenic and heavy metals millions of tons of slag contaminate the surface and the soils those contaminates sit above the port in forever and the fort hall bottoms and their movement is subject to natural forces what expenses might the tribe permit a program or rather its regulatory program in place and f m c agreed to pay a one million dollars start up fee for that to occur and then paid the fee for four years the record shows that during that time the tribes through tribal agencies charged with that was sponsibility engaged in sampling activities quality control assurance oversight of both the record and surplus sites document review interaction with regulatory authorities and the record also shows that the funds that the tribe received were inadequate to support those activities and at the time that this fee was negotiated the re consent decree set out a menu of rights that the tribe had to be sure couldn't enforce them directly itself but it set out a number of monitoring inspection and oversight rights of the tribe head so the parties knew when they negotiated what the tribes would be able to do under the ripper consent decree and the tribes were doing everything they could but they simply didn't have the funds now for the future your honor i think that there's a great  to be done concerning monitoring for foss fiend there wasn't a plan included in e p a as i rhoda said it would develop one later further study of what to do about twenty one dollars tanker rail cars that f m c toxic waste dump there's some sort of lining underneath the pit is there any lining i'm going to want to what are we dealing with a weird corrosion and seepage is there what i would really know scientifically about the site there's not a great deal known about the railcars except that f m c dumped them in a hole and covered them with clay and slab they were not designed for disposal of phosphorous or other materials they were simply tanker rail cars that f m c deemed too dangerous to clean out so they just dumped them and sent them down into the into the hole so there is no protection for them and e p a decided that it would simply leave those rail cars where they were where they were literally permeates it flows through with the groundwater directly into the port for ever and for whole bottoms so there is a continuing conduit for this contamination to flow and a can't control the downhill flow of groundwater can't stop that from happening e p a can't control the process by which phosphorus converts to foster when exposed to it can't stop phosphorus from burning or exploding when exposed to air all of these x exposures transports releases of contaminants will continue now e p a at the time of trial there remedy had not been implemented so it hadn't reduce the threat one iota and the district court noted that pointing to their two thousand and thirteen unilateral administrative order in addition i would say that this court's decision in montana versus u s e p a makes clear that it tribe is not required to rely exclusively on e p a to protect its treaty rights in its natural resources and here that's particularly with good reason the record consent decree applies to only portions of the property  the i rhoda as we refer to it the interim grammarian it's only that a final remedy the district court found won't be available for five or ten years had not been implemented at that time and as i said even when it is  implemented the threat will not be arrested because the threat comes from natural forces and chemical reactions that e p a really can't do anything about so what do we have in the record with respect t different kinds of expenses that the tribe might incur number one from here forward i understand that we might need to have been different during earlier stages but from here forward continuing monitoring expenses or on go on going sort of protections that the tribe is going to be doing that's one thing in a non catastrophic situation but money that might nd money that might have to be set aside in the event of some catastrophic leak or i'm not quite sure even how to say something some serious event that is beyond simply monitoring what what kinds of expenses are there in the record that the tribe might anticipate what kinds of any you know i think the i think st there is the the monitoring and oversight of the contamination which has been ongoing for which there is not adequate funding i think nd there is a question that's in the record though you expenses that the tribe mantissa paid not a budgeted figure one of the problems the tribe was facing was it was seeking to regulate these respect an reasonable then the district court would have had occasion to address the issue of whether the fee was or wasn't reasonable it carried over the fee because f m c had agreed to it and it reaffirmed that ruling in the order of may twenty eight so when it it carried over it was entirely proper to do so and f m c didn't state any objection what do i do with judge windmills conclusion that with respect to the nd montana exception that is it was connected by the parties informed represented parties sitting down and negotiate ing what that amount would be at the same time that the united states was undertaking to regulate under record the tribes were undertaking to regulate under tribal law so these well informed well represented parties negotiated an agreement and the benchmark to which remarkable things here is is you know f m c while it protests that it was the rest of coercion negotiated a very good deal for itself less than zero dollars seven cents per ton the tribes have never had a chance to determine what they would do with the money they never got and they haven't had a chance to budget it but if you look at the idaho state of idaho fees you see that the tried sfi is very very reasonable to deal with twenty two million tons of waste that has already contaminated twenty percent of the reservation roads are contaminated with slag which f m c used to sell the port in a river in the fort all bottoms are contaminated with phosphorus and arsenic the river delta is contaminated the use of these lands for ceremony on cultural purposes has been arrested by virtue of that contamination as tribal members testified if i could very briefly  address due process will you know you're at the end of your time so if you would emphasis on briefly the order of may twenty eight address the only question that f m c asked the court to consider namely has the court made all the factual the terminations necessary to the decision it issued that's the only thing that f m c asked the court to do and the court did that in the order of may twenty eight f m c is attack on that ruling is really an attack on the integrity of the panel and the district court nd panel the nd panel the district court anticipated that and expressly determined that the members of the new panel were not biased in favor of the tribes or against f m c they were all well respected members of the idaho bar ok thank you very much would you put two minutes on the clock please honour's just briefly on the justification for the fees the tribes have not come forward with any actual just of his in the terms of expenditures for the one million five hundred thousand dollars fee they want us haven't been getting for quite a long time right well they would we haven't paid it since two seven that was it the montana one argument we heard today here isn't in for a penny in for the pound or gimmick that the court has rejected on montana to all of their arguments about the dangers posed by the is protective of human health and on this what the district court said was at f m c is evidence of stablish without rebuttal that despite the toxicity of the waste no measurable harm and yet occurred humans or water quality and e p a is containment program would prevent any future ha entitled to the ordinary deference that would apply to an actual finding of fact we would ask this court reversed the judgment below find that this extraordinary judgment and posing a perpetual one dollar annual fee is not enforceable under this