FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FMC C O R

P O R AT I ON , Plaintiff-Appellant/ Cross-Appellee
,

v.

S H O S H ONE -B A

N N O C K T R I B E S , Defendant-Appellee/

Cross-Appellant. Nos. 17-35840 17-35865

D.C. No. 4 :14-cv-00489-BLW

OPINION

Appeal from

the United States District Court for the District of Idaho B. Lynn W inm ill, Chief District Judge, Presiding

Argued and Subm itted May 17, 2019 Seattle, W ashington

Filed Novem

ber 15, 2019

Before: Michael Daly Hawkins and W illiamA. Fletcher, Circuit Judges, and David C. Bury, * District Judge.

Opinion by Judge W

. Fletcher

* The Honorable David C. Bury, United States District Judge for the District of Arizona, sitting by designation.F MC C O R P

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SUMMARY * *

Tribal Court Jurisdiction

Th e p an el af

f irm ed th e d istrict court’s judgm ent enforcing

a judgm ent of the S hoshone-Ba nnock Tribal C ourt o f Appeals, which ruled that FMC Co r p oration m

ust pay an annual use perm it fee for storage of haz ar dous waste on fee lands w ithin the Shoshone-Bannock Fort Hall Reservation, as required under a consent decree settling a prior su it brought against FMC by the E nvironm ental Protection Agency under the Resource Conservation and Recovery Act.

The p an el held that the tribal court had regulatory and adjudicatory jurisdiction over the Shoshone-Bannock Tribes’ suit against FMC under two “ Montana exceptions.” Under the first exception, a tribe m ay regulate the activities o f

nonm em bers who enter into consensual relationships with the tribe or its m em

bers. Under the second Montana exception,

a tribe retains inherent power to exercise civil authority over the conduct of non-Indians on f ee lands within its reservation when that conduct threatens or has som e direct effect o n the p olitical integrity, the econom ic security, or the h ealth o r wel far e of the tribe. T he panel held that, under the first Montana exception, the Tribes had regulatory jurisdiction to i mp o s e the perm it f

ees because FMC entered into a consensual relationship when it signed a perm it agreem ent with the Tribes. The panel h eld th at FM C’s conduct o f storing hazardous waste on its fee lands within the reservation fell within the second Montana exception. The panel held

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.F MC C O R P

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that the district court erred in refusing, as a m atter o f com ity,
to enforce the judgm ent of the Tribal Court of Appeals under the second exception. The panel held that, in addition to reg u l atory jurisdiction, the T ribes had adjudicatory jurisdiction.

The p an e l a lso held that the Tribal Court of Appeals did not deny FMC due process through a lack of impartiality.

C OUNSEL

Gregory G. Garre (argued), Elana Nightingale Dawson, and Genevieve P. Hoffm an , Latham & W atkins LLP, W ashing t o n , D.C.; Ralph H. P alum bo, Yarm uth W ilsdon PLLC, S eattle
, W ashington; Lee Radford, Parsons Behle & Latim er, Idaho Falls, Idaho; Maureen L. Mitchell, Fox Rothschild L LP, Seattle, W ashingto n ; for PlaintiffAppellant/Cross-Appellee.

Douglas B. L. Endreson (argu e d ) and Frank S. Hollem an, Sonosky Cham

bers S achse Endreson & Perry LLP, W ashington, D.C.; W il l i am F. Bacon, Shoshone-Bannock Tribes, Fort Hal l
, Idaho; Paul C. Echo Hawk, Echo Hawk Law O f f i ce, Pocatello, Idaho; for Defendant-Appellee/CrossAppellant.F MC C O R P

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OPINION

W . FLETCHER, Circuit Judge:

For over 50 years, FMC Corporation (“FMC”) o p erated

an elem ental phosphorus plant on f ee land withi n the Shoshone-Bannock Fort Hall Reservation (“Reservation”) in Idaho. FMC’s operations p roduced approxim ately 22 m illion
tons of hazardous waste that is curren t ly stored o n the Reservation. The waste is radioactive, carcinogenic, and poisonous.

In 1990, the U.S. Environm ental Protection Agency (“EPA”) declared FMC’s plant and s torage area, together with an adjoining off-reservation p l ant owned by J.R. Simp l ot, a Superfund Site under the Com p rehensive Environm ental Response, Com pensation and Liability A ct (“CERCLA”). In 1997, the EPA further charged FMC with violating the Resource Conservation and Recovery A ct (“RCRA”). A Consent Decree settling the RCRA suit required FMC to obtain perm its from the Shoshone-Bannock Tribes (“the Tribes”). FMC and the Tri b es negotiated an agreem ent under which FMC agreed to pay $1.5 m illion per year for a tr ibal use perm it allowing storage of hazardous
waste. FMC paid the annual use p e rm it fee from 1998 to 2001 but refused to pay the fee in 2002 after ceasing active plant operations. F MC has continued to store the hazardous
waste o n the Reservation desp i t e its failure to p ay the use perm it fee.

The T ribes sued FMC in Tribal Court, seeking inter alia paym e nt o f the annual $1.5 m illion use perm it fee f or waste storage. Under Mon ta n a v. United States
, 450 U.S. 544 (1981), there are two potentially relevant bases for tribalF MC C O R P

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jurisdiction in this case—two of the three so-called “ Montana exceptions.” First, “[a] tribe m ay regulate, through taxation, licensing, o r other m eans, the activities of nonm em bers who
enter consensual relationships with the tribe or its m em bers,
through comm ercial dealing, contracts, leases, o r oth e r arrangem ents.” Id. at 565. Second, “[a] tribe m ay also retain inherent power to exercise civil authority over the conduct o f non-Indians on fee lands within its reservation when that conduct threa t e n s or has som e direct effect on the political integrity, the econom ic security, or the health or we l fare o f the trib e

. ” Id

. at 566. After years of litigation, the Tribal Court of Appeals held in 2014 that the Tribes have regulatory and adjudicatory jurisdiction over FMC under both Montana exceptions. The court held that F MC owed $19.5 m illion in unpaid use perm it fees f

or hazardous waste storage from 2002 to 2014, and $1.5 m illion in annual fees going forward.

After the decision o f the Tribal C ourt of Appeals, FMC sued the T ribes in federal district court. FMC argued that the Tribes did not have jurisdiction under either of the Montana exceptions; that the Tribal Court of Appeals denied FMC d ue process b ecause two judg e s o n the Tribal Court of Appeals

were biased against F MC; and that the judgm ent by the Tribal Court of Appeals was unenforceable. The Tribes counterclaim ed, seeking an order recognizing and enforcing the ju dgm ent of the T ribal Court of Appeals. The district

court h eld that the Tribes h ad regulatory and adjudicatory jurisdiction under both Monta n a exceptions, that the Tribal Court of Appeals had n ot denied FMC due p rocess, and that the T ribal Court of Appeals’ judgm ent w as entitled to com ity, and was therefore enforceable, under the first but no t the second Montana exception.F MC C O R P

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FMC appeals the d istrict court’s judgm ent in f avor of the Tribes. The Tribes cross-appeal the district court’s decision that the Tribal Court of Appeals’ judgm ent is not enforceable under the second Montana exception.

W e affirm the judgme nt o f the district court. W e hold that the judgm ent of the Tribal C ourt o f Ap p e als is enforceable under both Montana exceptions.

I. Factual and Procedural Background

The Shoshone-Bannock Tribes are a federally recognized Indian tribe com

prising the eastern and western bands of the Northern Shoshone and th e Bannock, or Northern Paiute, bands. T he Tribes ar e organized under the Indian Reorganization Act of 193 4, 25 U.S.C. §§ 5101 et seq., and

are governed by the Fort Hall B usiness C ouncil, a legislative b o d y c o n s i s t i n g o f s e v e n e l e c t e d m e m b e r s

. S h o s h o n e

- B a n n o c k T r i b e s , T r i b a l G o v e r n m e n t , http://www2.sbtribes.com/governm ent (last visited S ept. 19, 2019). The anc e stral lands of the Tribes included land in present-day Idaho, Oregon, Nevada, Utah, Wyom ing, Montana, and parts of Canada. See Shoshone-Bannock T rib es, http://www2.sbtribes.com/ab o ut (last v i sited S ep t. 1 9
, 2019). Pursuant to the Fort Bridger Treaty of 1868, 15 Stat. 673, an d r elated executive o rders, the Tribes today have sovereign authority over the Fort Hall Reservation. The Fort Hall Reservation originally encom passed approxim ately 1.8 m illion acres, o r 2,800 square m iles. See id

. The Reservation now encom

passes approxim ately 544,000 acres,

or 840 square m iles, in what is now so uth eastern Idaho. Ninety-seven percent of the Reservation is tribal land or land held in trust by the United S tates for the benefit of the TribesF MC C O R P

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and th e ir m em

bers. Approxim ately three percent of the Reservation is fee land owned by non-m em bers.

A. FMC’s Phosphorus Plant, Consent Decree, and Perm it Fees

From 1949 to 2001, FMC Corporatio n and its predecessors owned and opera t ed an elem ental phosphorus production plant occupying 1,450 acres. Virtually all of the property is fee land on the Fort Hall Reservation. FMC’s plant was the largest elem ental p hosphorus p lant in the world. FMC Idah o , P la n t H

isto ry , http ://f

m cid ah o

. co m

/p lant-history (last visited S ept. 19, 2 019). For m ost o f its operation, FMC obtained o r m ined raw m aterials for its p lant from tribal and allottee lands on the Reservation. See
, e.g. , id

.
Hazardous waste from the plant’s 5 2 years of operation

co ntami n ates FMC’s lan d o n th e R e serv atio n

. Ap p ro x im ately 22 m illion tons of hazardous waste are stored in waste storage ponds on the site. Som e storage ponds are capped. S om e are

n o t. S om e ponds are lined. Som e are not. Phos p h oru s , arsenic, and other h azardous m aterials contam inate an additional 1 mi l l i on tons of loose soil and groundwater throughout the site. Millio n s of tons of slag containing radioactive m at erials contam inate the site. Som ewhere between twenty one and thirty railroad tanker cars containing toxic phosphorous sludge are buried on the property. T here is no lining undern e ath the tanker cars and n o cap above them

. As will be describ e d i n greater detail below, the hazardous waste in the storage p o n ds, tanker cars, soil, groundwater, and air at the site i s radioactive, carcinogenic, and poisonous.F MC C O R P

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In 1990, EPA declared the FMC plant, as w ell as an adjoining o ff- r eservation plant owned by a different

com pany, J.R. Sim

plot, as a N ational Priori ty List Superfund Site—the “Eastern Michaud Flats” site—un d e r CERCLA. S

ee 5 5 F ed. Reg. 35502, 35507. T he N ational Priorities L ist is a list of the nation’s “wo r s t ha zardous

wa s t e s i t e s

. ” EPA, S u p e r f u n d Cleanup Pro c es s , h ttp s : //www. e p a. g o v/ s up e r fun d/ s up e r fun d

- c l e anup

- p r oc e s s (last visited Sept. 19, 2019).

In 1997, EPA charged FMC with violating RCRA. RCRA re gulates the disposal o f solid and hazardous waste. To avoid litigation, F MC began negotiatio n s with the EPA

over the term s of a possible Consent Decree that w ould settle the R CRA suit. Though not a form al p arty, the Tribes participated in the negotiations. Am ong other m easures, the proposed R CRA Consent Decree required construction of a treatm ent facility and additional waste storage p onds on FM C’ s fe e land on the Reservation. As a condition to obtaining the Conse nt D ecree, the E P A required FMC to obtain relevant perm its from the Tribes. See Consent D ecree, Case No. 4:98-cv-00406-BLW(D. Idaho, July 13, 1998).

Pursuant to the Tribes’ Land Us e Policy Ordinance (“LUPO” or “Ord i nance”) and associated Guidelines, the relevant tribal perm its inclu d e d a building perm it for construction of the treatm ent facility an d w aste sto rage ponds, and a use perm it for storage of the h a z ar d o us waste. FMC and the Tribes m et i n July 1997 to discuss the perm its. During n egotiations, FMC consented to tribal jurisdicti o n

. See, e.g. , Letter from the Land U se Po licy Comm ission to FMC (Aug. 6, 1997) (stating that following the July m eeting, “W e understood that F MC would recognize tribal jurisdictio n within the exterior boundaries of the Fort Hall IndianF MC C O R P

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Reservation.”); Letter fr o m J. Paul McGrath, Senior Vice President and G eneral Counsel and Secretary of FMC, to the Fort H all Business Council, Shoshone- Bannock Tribes (Oct. 30, 1 997) (stating “[i]n connection with the land use perm it, we did agree that we wo u ld consent to tribal jurisdiction in that area”). FMC applied for the building and use perm its in August 1997.

While negotiations were proceeding, the Tribes considered and then adopted am ended LUPO Guidelines for storage of hazardous waste on the Re s e rv at ion. The Tribes finalized the am ended Gu i d elines in April 1998. The

am ended Guidelines required an annu al u se p ermit f o r sto r age of h azardous waste on the Reservation, with an annual fee o f $5.00 per ton. Money f rom use perm it fees was to be “deposited in the Shoshone-Bannoc k Hazardous W aste Managem ent P rogram Fund,” and to be used “to p ay the reasonable and necessary costs o f adm inistrating the Hazardous W aste Managem ent Program .” Am endm ents to Chapter V: Fort Hall Land Use Operative Policy Guidelines, § V-9-2(B) (1998).

The Land Use P olicy Comm ission ( “ LUPC” o r “Comm ission”), the Tribes’ adm inistrative and enforcem ent b ody f or the Ordinance, notified FMC of the am en d e d Guide lines. FMC estim ated that the $5 per ton storage fee would cost over $110 m illion per y ear. F MC sought to nego ti ate a com

prom ise with the Tribes. FMC Corp. v. Tr ibes
, No. 4:14-CV-489-BLW
, 2017 WL 4322393, at * 2 (D. Idaho Sept. 28, 2017).

In May and June 1998, the T ribes and FMC negotiated an agreem ent under which FMC agreed to a one -t i me fee o f $1 m illion and an annual use p erm it fee of $ 1.5 m illion toF MC C O R P

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cover FMC’s storage o f its hazar d ou s waste on the Reservation. See L etter from L U PC to FMC (May 19, 1998). The parties agreed that FMC w as requi r e d to obtain a use perm it and to pay the $1.5 m illion fee even if FMC capped and closed the e leven hazardous w aste ponds that were subject to the RCRA Co n sent D ecree (the “RCRA ponds”). See id. (stating that FMC agreed to pay the annual use p erm it fee “beginning on June 1, 1999, and f or eve ry y e ar thereaft e r ” ); Letter from J. Paul McGrath, Senior Vice President and General Counsel and Secretary of FMC, to LUPC (June 2, 1998) (“[I]t is o ur un d erstanding that the perm it covers the plant and that the $1.5 mi ll i o n annual fee

wo u l d continue to be paid for the future even if the use o f ponds 17–19 was term inated in the next several years.”); Affidavit of Robert J. Fields, Divisi o n Manager of FMC (Oct. 2 0
, 2 000) (stating that he participated in the negotiations with the Tribes and that the June 2, 1998 letter fr o m FMC was intended to confirm FMC’s shar e d understanding that the use perm it covered the e ntire f acility and that FMC’s agreem ent to p ay $1.5 m illion per year would
not end when Ponds 17, 18 and 19 we r e c l o sed pursuant to the Consent Decree). FMC paid its first fee on June 1
, 1998.

A few m onths later, FMC and the EPA agreed to a Con s e nt Decree to settle the RCRA suit. F MC Corp. v. Tribes
, 2 017 WL 4322393 at *3. P aragraph 8 of the Consent Decree m em orialized the Decree’s requir em ent that FMC obtain perm its from the Tribes: “Whe r e any portion of the W ork requires a

. . . tribal perm it or approval, [FMC] s hall

s ub m it tim ely and com

plete applications and take all oth e r actions nec e s s ary to obtain all such perm its or approvals.” S ee C o n sent Decree, No. 4 :98-CV-00406-BLW
, ¶ 8 ( D

. Id ah o July 13, 1998).F MC C O R P

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Pursuant to the Consent Decree, FMC agreed to pay a fine
to the U.S. governm ent o f $ 11.9 m illion, to install a range o f upgrades in its h andling of w aste, and to c ap n i n e o f the

e leven R CRA ponds covered by the Consent Decree. FM C Corp. v. Tribes
, 2017 WL 4322393 at *3. Between 1999 and 2005, FMC capped and/or closed the R CRA p onds. Id. at *4. In 2005, FMC certified that the last of the RCRA ponds had been capped and/or closed.

B. Prior Federal Court Proceedings

From 1998 to 2001, FMC paid the Tribes the annual use perm it fe e of $1.5 m illion pursuant to its 1998 agreem ent with the Tribes. In D ecem ber 2001, FMC stopped all active phosphorus processing o perations at the sit e. When the $1.5 m illion u se perm it fee cam e due in 2002, FMC refused to pay it.

After negotiations failed, the Tribes f iled a m otion in the RCRA C onsent Decree action in f ederal district court, seeking a declaration that FMC was required by the Consent Decree to obtain tribal perm its for w as t e storage on the Re s ervation. Id. The district court h eld that “(1) the Tr i be s had jurisdiction over FMC under the first Montana exception

. . . , (2) F MC w as required to apply for Tribal perm its based

on FMC’s agreem ent to subm it to tribal jurisdiction in ¶ 8 o f the RCRA Consent D ecree, (3) the Tribes we r e intended third-party beneficiaries of the Consent Decree and therefore had a right to enforce its term s, and (4) FMC was required to exhaust tribal rem edies over any challen g e s to the Tribal perm it decisions.” F

MC Corp. v. Tribes
, 2017 WL 4322393 at *4 ; s e e United States v. F MC
, No. CV-98-0406-E-BLW
, 2006 WL 544505 (D. Idaho 2006).F MC C O R P

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On appeal from the district court, we addressed only the third of the district court’s holdings. W e held that the Tribes

were incidental rather than intended benefi c i aries of the Consent Decree and therefore had no right to judi c i al enforcem ent of the D ecree. United States v. FMC
, 531 F.3d 813, 815 (9th C ir. 2008). W e rem anded to th e d i s trict court with instructions to dism iss the Trib e s ’ s uit. Id. at 824. However, we noted that d uring the pendency o f the appeal to

our court “FMC b egan the process of ap p ly i n g for tribal perm its, which is the m ain relief that the Tribes have sought in this action.” Id. at 823. W e explicitly noted and relied on a representation by FMC. W e wrote:

At oral arg um ent, the Tribes expressed their

concern that, if we we re to hold that the Tribes lack standing to enforce th e Consent Decree, FMC woul d withdraw its perm it applications and undo the p rogress m ade to d ate on the proper resolution of this disput e. In response t o questioning from the panel, FMC’s lawyer represented to the court that FMC understands that it has the obligation to continue, and will continue, w ith the c urrent tribal proceedings to their conclusion. W e accept that statem ent from counsel as binding on FMC.

Id. at 823–24.

C. Tribal Proceedings

In 2006, after entry of the district court’s order b ut while FMC’s aforem entioned appeal to our court was still pending, FMC applied to the Tribes’ L and Use Policy Comm ission forF MC C O R P

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a building perm it for dem olition a c t i vi ties and a use p erm it for continued storage of the waste. Following notice and a public hearing, the Comm ission granted FMC’s applications for the two perm its. See Findings of Fact and De c i s io n o n FMC Application for Building Perm it for Activit i es at the FMC P ocatello Plant (Land Use Policy Comm ission, Apr. 25, 2006); Findings of Fact and Decision on FMC Application for Special Use Perm it for Activities at th e FMC P ocatello Plant (Land Use Policy Comm ission, Apr

. 2 5, 2006)

. The Comm ission concluded that it had regulatory jurisdiction under both Montana exceptions to require FMC to obtain the perm its. The Comm ission assessed a o ne-tim e building perm it fee at $3,000 for dem olition activities during that year. The Comm ission al s o a ssessed FMC’s use perm it fee for storage of hazardous waste at the previousl y agreed $1.5 m illion annual rate. The Comm ission provided, as an alternative, that FMC could choose t o pay the higher $5 per ton fee based o n the weight of the w aste stored on FMC’s property on the Reservation, pursuant to the Tribes’ am ended Guidelines. Id.

FMC appealed the Co mmission’s d ecision to the governing body of the T ribes, the Fort Hall Business Council (“Council”). On July 21, 2006, the Council affirm e d the C o m m ission’s decision. Fort Hall Business Coun cil D ecision Regarding FMC’s Appeals of th e Ap r il 25, 2006 Land Use Perm it Decisions (July 21, 2006). On February 8, 2007, the Comm ission issued a “letter resolution” setting the use p erm it fee at the agreed-upon $1.5 m illion. FMC again appealed the Comm ission’s decision to the Council. On June 14, 2007, the Council affirm ed the Comm ission’s decision.

FMC appealed the Council’s and the Comm ission’s decisions to the Tribal Court. (The Shoshone-Bannock tribalF MC C O R P

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court system c on s i sts of a trial court and an appellate court—the “Tribal Court”and the “Tribal Court of Appeals.”) The Tribal Court held inter alia that, pursuant to the Tribes’ laws, the Tribes were required to subm it th e i r Land Use P o l icy Guidelines and the Hazardous W aste Managem ent A ct of 2001, upon which the tribal use perm it require m ent was prem ised, to the Secretary of the Interior for approval. FMC Corp. v. Shoshone-Bannock Tribes’ Fort Hall Business Council and Land Use Policy Commission
, Case Nos. C -06- 0069, C-07-0017
, C-07-0035 (Shoshone-Bannock Tribal Court , Civil Division, May 21, 2008). The Tribal Court found that the Guidelines and the Act had not b een approved b y the Secretary of the Interior, and therefore, w er e unenforceable as a m atter of tribal law.

In June 2008, the Tribes and FMC cross-appealed to the Tribal Co urt of Appeals. The m em b ers of that court were Judges Fred Gabourie, Mary Pearson, and Cathy S ilak. None of them is a m em

ber of the S hoshone-Bannock Tribes. Judge Gabourie is a form er California state court judge, form er Chief Judge for the Kootenai Tribe of Idaho, and a form er prosecutor and city attorney. Judge Pearson is a form er Chief Judge for the Spokane Tribe and the Coeur d’Al e ne Tribe. Judge Silak is a form er Justice of the Idaho Suprem e Court.

1. Conference Rem arks by Judges Gabourie and Pearson

Whil e the case w as pending b efore the Tribal Court o f Appeals, Judges Gabourie and Pearson spoke at a conference entitled “Tribal Courts: Jurisdiction an d Be st P ractices”

conve n ed by the University of Idaho College of Law on March 23, 2 012. In the audience were law students, tr ibal
court practitioners, other lawyers, and m em bers of the public.F MC C O R P

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The conference was videotaped. FMC’s counsel attended the judges’ presentation.

Judge Gabour ie d escribed the m anner in which tribal appellate court decisions com e before federal courts, and he noted that v ery few federal court judges have experience with tribes. He stated that “every court has—should b e im partial” and “a good opinion com es [ f rom ] both sid e s , both parties. Because both parties rely on a g ood o pinion, strong opinion.” He stated that a tribal appellate court decision should discuss the trib e ’ s tr adition and culture so that judges in the federal syst e m h av e som e context when they read the decision. He stated that an appellate judge has a responsibility to rem and the case f

or testim ony from e xpe rt witnesses if there is a weakness in the record. He discussed lim itations on tribes’

sov e re i gn powers under current law, and how, in light o f Suprem e Court decisions like Montana
, “which has just been

m urderous to Indian tr i b e s,” it is im portant for tribes to support g ood appellate courts tha t c an issue strong o p inions in the event issues are heard in a f ederal court. He discussed Ne vada v. Hicks
, 533 U.S. 3 53 (2001), and Strate v. A- 1 Contractors
, 520 U.S. 438 (1997), notin g that the tribal

ap p e l la t e court decisions had not been good, and that, as a result, the U.S. Suprem e Court d id not h ave v ital inform ation about the tribes’ cultures and traditions.

Judge Pearson discussed the im portance o f tribal attorneys creating a record at the tribal trial court level. She stated tribal attorneys should involve the tribe in th e “big cases.” She noted that they had a big case at that m om ent that they knew was “going to go up,” so they were saying prayers, reading cases, and “trying to d o

. . . the h i s t o ry.” She described Bugenig v. Hoopa Valley Tribe
, 266 F.3d 1201 (9th Cir. 2001), as a case where the tribal lawyers h ad effectivelyF MC C O R P

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laid out the history for the tribal tri al and appellate courts. She discussed the im

port ance of this responsibility—how “[y o u ] j ust need to m ake sure that y ou do the job right”—since non-Indian federal judges were r e v iewing the decisions.

In response to questions, Judge Gab ourie discussed the value of anthropologists and scientists testifying in tribal
court cases. He stated that the use of experts in Bugenig was

a m odel for tribes seek i ng t o p rotect their sovereignty, traditions, and cultures. Expanding o n his earlier discussion of experts, Judge Gabourie stated:

You know, there’s one area, too, there are tribes that have had m ining and other operations goin g on, on the reservation, you know, and then the m ining com pany o r

w h a t e v e r , m a n u fa c t u r i n g c o m p a n y , disappears. They leave, you know. They’ve

. . . either dug everything they could, and then the ground is disturbe d
, som etim es polluted beyond repair. And you sit as

. . . an appellate

c ourt justice, and you’re starting to read th e

cases that com e down fro m th e tribal court. And y o u’re saying to y o urself, you know, we kn ow that

. . . there’s pollution, that the foo d that they’re eating is polluted, the w ater’s pol l ute d, but nobody proved it. And while John Jones said that it is polluted, you know, John Jones don’t count. But the tribal court s have got to r e a l ize that you need expert witnesses. Y ou need chem ists and whateve r to get out of testifying. It m ay cost a little, butF MC C O R P

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so the ap p ellate court is in a position o f

rem anding that case back and say “do it.”

You know, you m ade—and you’ re really being fair to both sides.

. . . That’s why you need the expert witnesses to cover those loose end s , you know, so when it finally goes to the —whatever circuit it m ay go to, they can

see that ther e ’s been som e experts testifying

on b ehalf. Maybe e xp e rt s that testify on beh a lf of the m ining com pany, but experts nonetheless. W ell, you can be damn sure that the m ining com

pany’s going to spend the

m oney to protect their interest, you know.

So the appellate courts have g ot to step in and in th eir own w ay, m ake a good, balanced decision, a hun dred-percenter for both sides, but b e sure to protect the tribe. And that’s my own opinion, that last sentence.

Judge Pearson clarified, “W e’re not guar ant eeing anybody anything.” Judge Pearson advised the audience:

W ell, I encourage you to get the Bugenig handouts, because it’s real l y im portant. If you’re a law s tudent and you’re going to practice law, as well as if you’re a judge and you’re going to be hear i n g cases, you know where—com

panies com e on the reservations and d o busi n e ss for X num b er of years and they d irty up your groundwater and your other things, and they go out of b usiness. And they leave you just sitting. And you need to knowF MC C O R P

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what you can do as you’re sitting as a judge with those cases com ing toward you.

2. Decisions of the Tribal Court of Appeals

Just over a m onth later, on May 8, 2012, the T ribal Court of Appeals issued an opinion hold i n g inter alia that (1) the Tribes have regulatory and adjudicatory jurisdiction o v er FMC under the f

irst Montana exception to require FMC to obtain a building perm it for dem olition and construction, and

a use perm it for hazardous waste storage, and to require FMC to p ay the agreed-upon annual use perm it fee of $1.5 m illion; (2) the use perm it f

ee was authorized by an d e nforceable under tribal law, because, in ter alia
, the Land Use Policy Ordinance and the Hazardous W aste Managem ent Act were both approved by the Secretary of the Interior consistent with tribal law; and (3) the Tribal C ourt erred in failing to consider whether the Tribes have jurisdiction under the second Montana exception. Th e c ourt issued an am ended order on June 26, 2012. FMC C orp. v. Shoshone-Banno ck Tribes Land U se Dep’t and Fort Hall B us. Council
, Am ended, Nunc Pro Tunc F indings of Fact, Conclusions of Law, Opinion and Order
, Case Nos. C-06-0069, C -07-0017, C-07-0035 (Shoshone-Bannock Tribal Court of Appeals, June 26, 2 012) (“Tribal Court of Appeals, June 2012 Opinion”).

On January 10, 2013, pursuant to a state-court order under the Idaho Public Records Act, FMC obtained a videotape of Judges Gabourie an d Pearson’s rem arks at the law school conference. In April 2013, Jud g es Peter McDerm ott and Vern Herzog Jr. replaced Judges Gabourie and Pearson on the Tribal C ourt of Appeals. Judge McDerm ott is a retired Idaho
state district court judge. Judge Herzog is a p r acticingF MC C O R P

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att o rney. Neither is a m em ber of the Shoshone-Bannock Tribes. Judge Silak rem ained on the court.

On May 6, 2013, FMC filed b r i e fs asking the reconstituted Tribal Court of Appeals to reconsider its p ri o r rulings on the ground that the statem ents by Judges Gabourie and Pearson showed b ias against FMC. In an order dated May 28, 2013, the Tribal Court of Appeals revised its earlier ruling o n an i s s ue unrelated to the questions now b efore us. It u pheld its earlier rulings o n all other issues. The court ordered an evidentiary hearing to r e s o lve the question previously left open—whether the Tribes had regulatory and adjudicatory jurisdiction over FMC under the second Montana exception.

From April 1 to Ap r i l 15
, 2014, the T ribal Court o f Appeals held an evidentiary hearing on the second Montana exception. Judge Sil ak wa s not available for the hearing. Judge John Traylor replaced Judge Silak. Judge Traylor is a practicing attorney. He is not a m em ber of the ShoshoneBannock Tribes. Judges McDerm ott an d H erzo g rem ained on the court. Following the h earing, the Tribal Court of Appeals

m ade factual findings and held that the Tribes had regulatory

an d adjudicatory jurisdiction under the second Montana exception. See Shoshone-Bannock Tribes Land Use Dep’t and For t Ha ll Bus. C

ouncil v. FMC C

orp. , Opinion, Order, Findings of Facts and Conclusions of Law (ShoshoneBannock Tr i bal Court o f Appeals, May 16, 2014) (“Tribal Court o f Appeals, May 201 4 Op inion”); see also ShoshoneBannock T

ribes L and Use Dep’t and Fort Hall Bus. Council

v. FM C Corp.
, Statem ent of Decision (Shoshone-Bannock Tribal Court of Appeals, Apr. 15, 2014) (“Tr i b a l C ourt o f Appeals, Statem ent of Decision”).F MC C O R P

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In 2012, prior to the decision of the Tribal Court o f Appeals, the E PA had is su e d an Interim Am endm ent to the Record of Decision (“IRODA”) under CERCLA addressing the FMC O perable Unit (“OU”) of the Eastern Michaud F lats Superfund Site. See EPA, Interim Amendment to the Record of Decision for the EMF S

uperfund Site, F

MC Operable Unit, Pocatello, Idaho (Sept. 2012) (“IRODA ”)

. Th e IRODA replaced an earlier 1998 Record of Decision (“ROD”). EPA concluded that it needed to issue the IRODA because the hum an h ealth and environm ental threats at the FMC site were greater than ant icipated, there were “imm ediate” threats to hum an health and the environm ent, and EPA “no longer considered” the 1998 ROD “protective of hum an health and the environm ent.” IRODA at v, 14, 52; see also id. at ii, 16, 20.

The IRODA noted the particular d angers of the elem ental phosphorus prese nt at the FMC site: Elem ental phosphorus is an “ignitable and reactiv e waste” that has “physical properties unlike m ost contam inants of conc e rn

. . . encountered in environm ental response actions.” Id. at iii. Due to these characteristics, elem ental phosphorus “requires special h andling techniques not only for routine handling but also f or em ergency response.” Id. The IRODA noted that the

reme d ial work com

pleted under the RCRA Consent Decree

was ind e p e n d ent of the rem edial work that rem ained to be done under CERCLA. Id. at v.

The IRODA outlined an extensive, mu l ti-part “interim

am ended rem edy” to be im plem ented on the FMC site. The IRODA included the f

ollowing rem edial m easures: (1) place evapotranspiration caps over eight “rem ediation areas” on the Reservation containing “non-slag fill (such as el e me ntal phosph o r o u s , phossy solids, precipitator solids,

. . . ),” id. ;F MC C O R P

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(2) place “app r o x im ately 12 inches o f soil cover over areas containing slag fill, o r e stockpiles, and the form er Bannock Paving areas to prevent [] exposure to gamm a radiat i o n an d fugitive dust,” id. at iii–iv; (3) “[c]lean un d e rground reinforced concrete p ipes that contain elem ental phosphorous and radionuclides,” id. at iv; (4) “[i]nstall an interim g ro undwa t er e x tr a c t i o n/ tr e a tme n t s y s t e m t o co nt a i n contam inated groundwater, thereby preventing contam inated groundwater from m igrating b eyond th e FMC OU and into the Sim plot OU and/or adjoining springs or the Po rtn euf River,” id

. ; (5) “ [i ]m

p lem ent a long-term groundwater

m onitoring program to evaluate th e p e r form ance o f the soil and groundwater rem edial actions,” id. ; and (6) “[i]m p lem ent

a gas m onitoring program at the F MC OU capped ponds (also referred to as the CERCLA Ponds to distinguish them fr om the RCRA-regulated p o nds) and subsurface areas where elem ental p hosphorous is present to identify potential p h o s p h i n e an d o t h e r p o t e n t i a l g a s g e n e r a t i o n a t concentrations that could pose a risk to hum an health,” id. (em phasis in original).

In its brief to us, FMC wr o t e, “The IRODA—which

rem ains in effect to d ay—requires an additional set o f

rem edial actions that EPA has concluded are appropriate and f ully ‘protective of hum an health and the environm ent.’” (em phasis added.) FMC’s brief m isrepresents what the EPA

wr o t e. The EPA did n ot write that the interim rem edi al

m ea s ures described in the IRODA would b e “fully” protective. Here is wh at the EPA wrote in the IRODA,

s pe cifying that the rem edial m easures are “interim ” (wh i c h FMC’s b rief failed to m ention), and not using th e wo rd “fully” (which FMC’s brief supplied):F MC C O R P

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The m easures in this selecte d i nterim

am ended rem edy will be protective of human health and the environ me nt , com ply with federal and state/tribal requirem ents that are applicable or relevant and appropriate within
the scope of the selected interim am ended

rem edy, and result in cost-effective action and

utilize perm anent solutions and alternativ e treatm ent (or resource recovery) technologies to the m aximum

extent practicable.

IRODA at v (em

phasis added to indicate words quot e d in FMC’s brief).

The IRODA went on to specify:

Because th e selected interim am ended rem edy

w ill result in hazardous substan ces, p o llutants,

o r contam inants rem aining on the FMC OU above level s th at allow for unrestricted use and unlim ited exposure, a statutory review will b e conducted within 5 years aft e r i nitiation of the rem edial action, and every 5 years thereafter to ensure that the interim

am ended rem e dy i s or will [sic] protect hum an health and the environm ent.

Id. at vi.

The Tribal Court of Appeals’ factual findings were based in substantial part on the IRODA, and on earlier orders by the EPA, wh ose factual findings were not contested by FMC. See e.g. , Tribal Court of Appeals, May 2014 Op in i o n , at 6 n.2. The Tribal Court of Appeals found that “FM C c reatedF MC C O R P

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and continues to store m illions of tons of toxic waste o n its fee land within Reservation boundaries.” I d

. at 5. This hazardous w aste includes (1) as m uch as 16,000 tons o f elem ental phosphorus that leaked into the soil during production and now contam inates approxim ately 780,000 cubic yards of soil weighing approxim ately 1 mi llion tons; (2) elem ental p hosphorus that is “suspended in contam inated water” and contained in 23 w ast e s t o ra g e ponds o n the site; (3) “phosphine gas,” which is pro du c ed when elem ental phosphorus is exposed to water; (4) approxim ately 21 tanker rail cars that were used to ship hazardous elem ental phosphorous sludge and are now buried in unlined soil on the site; and (5) groundwat e r contam inated with arsenic and phosphorus that flows into im port ant ground and surface
water resources on the R eservation. Id. at 5–7 (citing IRODA at 7–9). “The site was als o fi l led and graded u sing m illions of tons of slag that contains radioactive m aterials which em it gamm a radiation in excess o f EPA’s hum an health safety standards.” Id. at 6 (citing IRODA at 7–9).

The Tribal Court of Appeals f ound tha t FMC’s creation and storage of this hazardo u s wa ste on the Reservation
creates “an ongoing and extensive threat to hum an health” and threatens the “welfare and cultural practices of the Tribes and their m em

bers.” Id. at 5. “The elem ental phosphorus in the soil and in con t a inm ent ponds [on] FMC’s land is reactive, m eaning that it will b urst into flam es when exposed
to o xygen.” Id. at 6 (citing IRODA at 77). “The phosphorus itself is toxic when ingested, inhaled o r absorbed.” Id. (citing IRODA at 78). Phosphine g as, wh i c h “ is harm ful and even deadly to human s at certain levels,” has been released from the site at dangerous levels. Id. at 7 (citing I RODA at 7 7). The tanker rail cars buried at the site contained “from 200 to 2,000 tons of elem ental phosphorus sludge, 10–25% of whichF MC C O R P

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rem ained in each of the tankers at the tim e they were buried” because FMC concl u d e d cleaning them was “dangerous” to emp l o y e e s

. Id. at 7–8. These tankers rem ain in the ground today, and “it is possible that they either have or w ill corrode
to the point of leakage.” Id. “Arsenic and phosphorus from the site are continuously f lowing in the groundwat e r from FMC’s land through seeps and spri ngs directly into the Portneuf River and Fort Hall Bottom s.” Id

. at 8

. This gro un d w ater contam ination “ n eg ativ ely af f ects th e eco sy stem and subsistence fishing
, hunting and gathering by tribal

m em bers at the River, as well as the Tribes’ ability to use this im portant resource as it has been historically used for cultural practices, including the Sundance.” Id.

The Tribal Court of Appeals stated th at “FMC does not challenge” that the hazar d o u s m aterials present at the FMC site “do pose a threat” to the Tribes. Id. at 9. “Rather, [FMC] contends that if certain m ethods suggested by the EPA are undertaken and properly im plem ented b y FMC in the future, the risk will be contained.” Id. B ut the court found that EPA itself continue s t o v i ew FMC’s site as dangerous to public health an d we l fare. For exam ple, in 2013, a year after the issuance of the IRODA, the EPA wrote that hazardous waste at the FMC site “m ay constitute an imm inent and substantial endangerm e nt to public health or welfare or the environ me nt.” Id. (quoting EPA, Unilateral Admin. Order fo r R em ed

ial Design a nd Remedial Action
, No. CERCLA-1 0

- 2013-0116, at 9–10 ( June 1 0, 2 013)). Further, the court wrote, “Although the E PA has been involved at this site since 1990, rem edial actions chosen b y th e EPA have not been im plem ented” and m any “proposed rem edial actions are still in de s i g n phase only.” Id. “EPA’s IRODA is itself o nly an interim m easure.” Id. “[A] final Record of Decision will not be available for f

ive to ten years.” Id. (citing IRODA at 1 9).F MC C O R P

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“EPA’s plans rem ain just that: Plans.” Id. In addition, “EPA’s plans are containm ent plans,” which would keep the hazardous wastes on the Reservati o n “for the indefinite future.” Id.

The Tribal Court of Appeals held that the Tribes h ad regulatory and adjudicatory jurisdiction over FMC under the second Montana exception. It concluded that FMC’s storage of m illions of tons of toxic waste on the Reservation poses a serious threat, and has a direct effe c t o n , “the political integrity, the econom ic security or the health or welfare of the [Tri b e s].” S

ee Tribal Court of Appeals, May 2014 Opinion
at 14–15; Tribal Court of Appeals, Stateme nt of Decision
at 29

– 3 2. The Court concluded that this threat “is real; it is
not a m ere potential,” and is a threa t o f catastrophic

c o n s equences to the Tribes. Tribal Court of Appeals, May 2014 Opinion, at 11.

On M ay 16, 2014, the Tribal Court of Appeals issued a final judgm ent, holding FMC liable for an annual use p erm it fee of $1.5 m illion. S

ee Shoshone-Bannock T

ribes Land Use Dep ’ t and Fort Hall Bus. Council v. FMC Corp.
, Judgm ent and O rder for Attorney F ee s and Co sts, May 16, 2014. The
court assessed FMC $19,500,000 f or unpaid perm it fees for 2002–2014; $928,220.50 in atto rneys’ fees; and $91,097.91 in costs, for a total judgm ent of $20,519,318.41. Id.

D. Federal District Court Proceedings

In Novem ber 2014, FMC f

iled a com

plaint in the United States District Court for the District of Idaho, requesting that
the district court deny enforcem ent of the judgm ent o f th e Tribal Court of Appeals. The Tribes counterclaim ed, seeking an order enforcing the judgm ent.F MC C O R P

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The district court granted the Tribes’ m otion to enforce the judgm ent. Th e court concluded that the T ribes h ad jurisdiction over FMC under b oth Montana exceptions. The district court rejected FMC’s d u e process challenge based on the alleged bias of Judges Gabourie and Pearson o n the first panel of the Tribal Court of Appeals. The court noted that the reconstituted panel reconsidered the rulings of the first panel and, in relevan t part, independently reached the sam e conclusions.

The district court enforced the judgm ent in its entirety under the first Montana exception. However, the court denied com ity under the s econd Montana exception on the ground that the r e was insufficient nexus between the $1.5 m illion annual perm it fee and th e costs of tribal program s required to m itigate the threat from the storage o f FMC’s hazardous waste o n the Re s e rvation. T h e court concluded that the second Montana exception was therefore not a ground on which the judgm ent could be enforced.

The present appeal followed. FMC argues that the Tribes lacked jurisdiction over FMC under both Montana exceptions, and that FMC was denied due process. The Tribes cross-appeal, arguing that the d i strict court erred in finding that the judgm ent was not e n fo r ceable under the second Montana exception.

II. Appellate Jurisdiction and Standard of Review

W e have appellate jurisdiction under 28 U.S.C. § 1291.

“W e have

. . . recognized that b ecause trib a l courts are

c o mp e t e n t l aw

- ap p l y i n g b o d i e s , th e tr i b a l c o u r t ’ s determ ination of its own jurisdiction is entitl e d t o ‘som eF MC C O R P

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deference.’” Water Wheel Camp Recreati o n a l Area, Inc. v. LaRance
, 642 F.3d 802, 808 (9th C ir. 2011) (quoting FMC v. Shoshone-Bannock T

ribes
, 9 05 F. 2 d 1 311, 1 313 (9th Cir. 1990)). “As we consider questions of tribal jurisdiction, we

are m indful of ‘the federal policy o f deference to tribal courts’ and that ‘[t]he f

ederal policy of prom oting tribal selfgovernm ent encom

passes the developm ent o f the entire tribal
court system , in cluding appellate courts.’” Id. at 808 (quoting Iowa Mut. Ins. Co. v. LaPlante
, 480 U.S. 9
, 1 6–17 (1987));

see also United States v. Wheeler
, 435 U .S. 313, 332 (1978) (recognizing that “tribal courts are im portant m echanism s for protecting significant tribal interests”).

W e review de novo tribal courts’ legal rulings o n tr i bal jurisdiction, and we review fo r c lear error tribal courts’ factual findings underlying their jurisdictional ruling s

. Big Horn Cty. Elec. Coop., Inc. v. Adams
, 219 F.3d 944, 9 49 (9th Cir. 2000); AT&T C

orp. v. Coeur d’Alene Tribe
, 295 F.3d 899, 904 (9th Cir. 2002).

W e review de novo the d istrict court’s summ ary ju d g m ent decisi o non the due process claim

. Big Horn Cty.
, 219 F.3d at 949.

III. Discussion

The core question in this appeal is whe ther we should recognize and enforce the Shoshone-Bannock Tribal Court o f Appeals’ final judgm ent h o l d i n g FMC liable for an annual use perm it fee of $1.5 m illion.

“As a general rule, fed er a l courts m ust recognize and

e n force tribal court judgm ents under principles of com ity. ” AT&T Corp. v. Coeur d’Alene Tribe
, 295 F.3d at 903 (citingF MC C O R P

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W i l s on v. Marchington
, 1 2 7 F.3d 805, 810 (9th Cir. 1997 ) ). In som e circum stances, h owever, we will n o t recognize and

e n force a judgm ent. Id. First, we w ill not recogn i z e an d enforce a judgm ent if the tribal court did n o t h ave both personal and subject m atter jurisdiction. Id. Second, we will
not enforce a judgm ent if the tribal court denied due process to the losing party. Id. Further, “[u]nder lim ited circum stances,

. . . [we] m ay refuse to recognize or enforce a tribal j ud g ment on equitable grounds as an exercise o f discretion.” Id

.

FMC argues we should no t en fo r ce the judgm ent of the Shoshone-Bannock Tribal C ourt of Appeals for two reasons. First, FMC argues the Tribes lacked subject m atter j urisdiction over FMC. Second, FMC argues it was den i e d due process o f law because two judges o f the Tribal C ourt o f Appeals were biased against it.

Unless we hold that the Shoshone-Bannock Tribal Court of Appeals lacked subject m atter jurisdiction or denied FMC due p rocess, we “m

ust enforce the tribal court j u dgm ent without reconsidering issues decided b y the tribal court.” Id.
at 9 0 3–04 (citing Iowa Mut. Ins. Co.
, 480 U.S. at 19 (“Unless

a federal court determ i n es that the Tribal Court lacked jurisdiction

. . . proper deference to the tribal court system precludes r e l i tigation of issues

. . . resolved in the Tribal Courts.”)). W e “m ay not readjudicate questions—whether o f federal, state or tribal law—already resol v ed in tribal court absent a f inding that the tribal court lacked jurisdiction or that its judgm ent be denied com ity for som e other valid reason.” Id. at 904.

W e address each o f FM C’ s argum ents in turn. W e hold tha t the Tribes had regulatory and adjudicatory jurisdictionF MC C O R P

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under both Mo n ta n a exceptions to im pose and enforce the perm it fe e s

. We further hold that there was no due process vi olation. Finally, we hold that the final judgm ent of the Shoshone-Bannock Tribal Court of Appeals is entitled to

reco gn itio n an d en f

o rcement u

n d er principles of com ity un d er both Montana exceptions.

A. Subject Matter Jurisdiction

W e first d eterm ine wh eth er th e S h o sh o ne-Bannock Tribal Co urt of Appeals had subject m atter jurisdiction over the Tribes’ claim s against FMC. To m ake that determ ination, we

m ust answer two related q

u estions. F irst, did the Tribes have

r e gulatory jurisdiction to im pose the perm it fees? S e c o n d
, did the Tribes have adjudicatory jurisdiction to enforce those fees in tribal court? See, e.g. , Water Wheel
, 642 F.3d at 809 (“To exercise its inherent civil auth o ri ty over a defendant, a tribal court m

ust have [] s ub

ject m atter jurisdiction— consisting of regulatory and adjudicative jurisdiction

. . . .”);

see also Knighton v. Cedarville Rancheria of N. Paiute I ndians
, 922 F.3d 892, 899 (9th Cir. 2019) (quot in g th e

same ). For the reasons that follow, we hold that the Tribes had both regulatory and adjudicatory jurisdiction.

1. Regulatory Jurisdiction

The case before us concerns n onm em ber conduct on nonIndian-owned fee land within the boundaries of the Reservation. W e therefore apply the Suprem e Court’s fram ework set forth in Montana v. United Sta tes , 450 U.S. 544 (1981), to determ ine whether the Tribes had regul at ory juris diction to im

pose perm it fees on FMC. See Window Rock Unified Sch. Dist. v. Reeves
, 861 F .3d 894, 898 (9th Cir. 2 017), as amended (Aug. 3
, 2 0 17) (explaining that “[o]urF MC C O R P

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caselaw has l o n g recognized two d istinct fram eworks for determ ining whether a tribe has jurisdiction over a case involving a non-tribal-m em ber defendant: (1 ) the right to exclude, which generally applies to nonm em b e r conduct on tribal land ; and (2) the exceptions articulated in Montana v. United S tates , 450 U.S. 544 (1981), which generally apply to

nonm em ber conduct on non-tribal land .” (em phasis added)).

In Montana
, the S uprem e Court held that there are three bases for tribal regulatory jurisdiction over no nm em ber activities on n on-Indian fee land w ithin the boundari e s of a reservation—t h e s o-called Montana exceptions. 450 U.S. at 565–66 (“Indian tribes retain inherent sovereign power to exercise som e form s of civil jurisdiction over non-Indians on their reserva t i ons, even on non-Indian fee lands.”); Bugenig

v

. Hoopa Valley Tribe
, 266 F.3d 1201, 1209–10 (9th Ci r. 2001) (en banc ) ( discussing the sam e); see also Iowa Mut. Ins. Co.
, 480 U.S. at 18 (“Tribal authority over the activities of non-Indians on reserv at io n lands is an im portant p art o f tribal sovereignty.” ) ; Attorney’s Process & Investigation Servs., Inc. v. S

a c & Fox T

ribe of Miss. in Iowa
, 609 F.3d 927, 934–35 (8th Cir. 2010) (briefly discussing som e o f the historical scope of tribal sovereignty and changes over tim e). Cf. Worcester v. Georgia
, 31 U.S. 5 15, 557 (1832) (Tribes are “distinct political comm

unities, having territorial boundaries, within wh i ch their authority is exclusive, and h aving a right
to all the lands within those bound ar i e s , which is not only acknowledged, but guarantied by the United States.”).

First, a tribe retains the inherent sovereign authority to “regulate, thr o u gh taxation, licensing, or other m eans, the activities of nonm em

bers who enter consensual relationships with the tribe or its m em bers, through comm ercial d e a li ng, contracts, leases or o ther arrangem ents.” 450 U .S. at 5 6 5

.F MC C O R P

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Second, a trib e “ r etain[s] inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has som e direct effect on the political integrity, the econom ic security, or the health or welfare of the tribe.” Id. at 566. Third, a Tribe m ay regulate the conduct of nonm em bers on non-Indian fee land when that regulation is expressly authorized b y federal statute

or treaty. S

ee Strate
, 520 U.S. at 4 45; Montana v. U.S. EPA
, 137 F.3d 1135, 1140 (9th C ir. 1 998). There is a presum ption against tribal juri s d iction over nonm em ber activity on nonIndian fee land. Bugenig
, 266 F .3d at 1 209–10; see Plains Commerce Bank v. Long Family Land & Cattle Co
., 5 54 U.S. 316, 330 (2008). T he Tribes bear the burden o f rebutting that presum ption. Plains Commerce Bank
, 554 U.S. at 330.

Only the first two jurisd i c t i onal bases are relevant here. W e exam ine them

in turn.

a. First Montana Exception

The first Montana exception provides th at tribes have jurisdiction to “regulate, through taxation, licensing, or other

m eans, the activities of n onm em bers who enter consensual relationships with the tr ibe or its m em bers,” including

con sensual relationships “through comm ercial dealing, contracts, leases or other arrangem ents.” Montana
, 450 U.S. at 5 65–66; see also Strate
, 520 U. S. at 446. The Suprem e Court has recognize d that perm it requirem ents and p erm it fees constitute a form of regulation. S ee Morris v. Hitchcock
, 194 U.S. 3 84 (1904) (recognizin g tribal jurisdiction to require

non-m em bers to obtain perm its and pay a perm it fee in order to graze livestock on reservation).F MC C O R P

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For purposes of determ ining wheth e r a consensual relationship exists, “consent m ay b e established ‘expressly o r by [the nonm em

ber’s] actions.’” Water Wheel
, 642 F.3d
at 818 (quoting Plains Commerce B a nk
, 554 U. S. at 338). The test is n ot subjective. Rather, it is “whether under th[e] circum stances the non-Indian defe ndant should have reasonably anticipated that [it s] interactions m ight ‘trigger’ tribal authority.” Id. at 817–18 (quotin g Pla ins Commerce Bank
, 554 U.S. at 337) (stating also “[t]he Suprem e Court has indicated that tribal jurisdiction depends on what non-Indians ‘reasonably’ s h o u l d ‘anticipate’ from their dealings w ith a tribe or tribal m em

b ers on a reservation.”).

FMC entered a consensua l r elationship with the Tribes, both expressly and through its actions, when it negotiated and entered into an perm it agreem ent with the Tribes, requiring annual use perm its and an annual $1. 5 mi l l ion perm it fee to store 22 m illion tons of hazardous waste on the Reservation. As the district court noted, FMC then “affirme d i t s consensual relationship with the Tribes by signing the Consent Decree, which required FMC to obtain Tr i bal perm its.” FMC Corp. v. Tri b es , 2017 WL 4322393 at *9. “FMC then cited its consensual relationship with the Tribes”
to the district court and our court “as part of its argum ent that the Dec r ee should be approved.” Id. The conduct that the Tribes seek to regulate through the perm it fees at issue—the storage of hazardous waste on the Reserva t ion—arises dir e c t l y out of this consensual relationship. S ee Knighton
, 9 22 F.3d at 904 (“

Montana ’s consensual relationshi p exception requires that ‘the regulation im posed by the Indian tribe h ave a nexus to the consensual relationship itself.’” (quoting A tkinson Trading Co. v. Shirley
, 532 U.S. 645, 656 (2001))).F MC C O R P

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FMC argues this consensual relationship was “coe r c ed” because EPA required FMC to obt ain relevant perm its from the Tribes in order to obtain a Consent Decree to settle E PA’s RCRA-based c l a i ms against FMC. FMC m ay indeed have been “coerced” in the sense that the EPA required it to obtain tribal perm its as a condition for obtaining a Consent D ecree. However, the “coercion,” if it can be called that, cam e from FMC’s stron g i nt e rest in obtaining a Consent Decree that would allow it to settle the RCRA suit on favorable term s.

FMC was highly m otivated to obtain the C onsent Decree proffered b y the EPA. In the wor ds o f the district court, “[T]he Consent Decree allowed FMC to d um p the toxic m ess it had c r e ate d in the E PA’s lap by paying a sm all fine o f $11.9 m illion along with a few m illion dollars in construction

comm itm ents. That w as a sweetheart deal and FMC was desperate to grab it.” FMC Co r p

. v

. Tribes
, 2017 WL 4322393 at *13. Faced with a choice b etween years o f litigation, on the o ne hand, and a “sweetheart d eal” that required FMC to p ay a s mall fine and obtain tribal perm its whose term s were already known, on the other, FM C chose
to c o n s e nt to tribal jurisdiction. The district court wrote,

“ Th i s was a sim

p le business deal

. . . .” Id. at *10

. I t wa s “not the product of illegal duress or coercion.” Id.

W e fail to see why a stro n g i nterest in obtaining a p articular result is “coercion” that invalidates an agre e me nt designed to achieve that desired result. Further, to the extent that there w as som e kind of “coercion,” it was “coercion” by the EPA. It wa s the EPA that insisted on tribal perm its as a condition t o ag r e eing to enter into the Consent Decree. A s the d istrict court observed, the Tribes sim ply “took advantage of their bargaining leverage, a l o n g

- standing practice in theF MC C O R P

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sharp-elbowed corporate world in which FMC does business every day.” Id.

Moreover, FMC should have reasonably anticipated that i t s interactions m ight “trigger” tribal regulatory authority

. Water Wheel
, 642 F .3d at 818 (qu o t i ng Plains Commerce Bank
, 554 U.S. at 338). FMC “is no stranger” to the Tribes’ governance and laws or to the Tribes’ r egulatory and adjudicatory jurisdiction

. Knighton
, 922 F.3d at 904. FMC has operated o n the Reservation for over 50 years and has h ad

an extensive relationship with the Tribes for 70 years. That relationship inc ludes a long history of “comm ercial d ealing[s], contracts, leases, a n d o th er arrang em ents” w ith th e Tribes, including m inin g leases, contracts for the supply o f phosphate shale, agreem ents recognizing the Tribes’ taxing power, royalty paym ents, and em p loym ent and p erm it agreem ents. Montana
, 450 U.S. at 565–66; see also FMC v. Shoshone-Bannock Tribes , 905 F.2d at 1312 (9th Cir. 1 990) (discussing FMC’s ext e nsive m ining operations on the Reservation to supply the phosphate shale needed to produce phosphorus at FMC’s facility).

Based on FMC’s history on the Fort Hall Reservation, we have previously held that FMC had entered into a consensual relationship with the Tribes. In 1 990, in FMC v

. ShoshoneBannock Tribes
, we held that th e Tribes had regulatory j urisdiction o ver FMC’s activities on its fee land withi n th e Rese rv ation such that the Tribes could require FMC to

com ply with the Tribes’ Tribal Em ploym ent Ri g hts Ordinance. 905 F.2d 1311. Enacted by the Tribes in 19 8 0
, the Ordinance required em ployers on the Reservation, including non-Indian em

ployers operating on fee lan d
, to give

ma n d at o ry p r e f

e r e n c e s i n h i r i n g , c o n tr a c t i n g , an d subcontractin g to Indians. Id. at 1312. FMC initiallyF MC C O R P

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objected to application of the Ordinance to its phosphorus production plant, the sam e plant at issue here. Id. But there,

as h e r e , “[a]fter negotiations with the T ribes, FMC entered into an em

ploym ent agreem ent based on the T E RO i n 1981 that resulted in a large increase in the num ber o f Indian

em ployees at FMC.” Id. at 1312–13.

In 1986, “the Tribes becam e dissatisfied with FMC’s

com plianc e with the em

ploym ent agreem ent,” and after
attem p ts to negotiate f

ailed, the Tribes filed sui t i n Tr ibal Court. Id. at 1 3 1 3

. There, as here, FMC argued the Tribes lacked regulatory and adjudicatory jurisdiction over FMC. I d

. The Tribal Court held the Tribes had jurisdiction over FMC and concluded that FM C h a d violated the Ordinance. Id. The Tribal Court of Appeals affirm ed. Id. When the parties could not agree on a com pliance p lan, the Tribal Court of Appeal s e nt e red its o wn com pliance plan and levied an annual fee of approxim ately $100,000 against FMC. Id.

W e held that the T ribes had jurisdiction over FMC under Montana ’s first exception. W e wrote:

FMC h as certainly entered into c onsensual rel ationships with the Tribes in several instances. Mo st notable are the wide[- ]ranging m ining leases and co ntracts FMC has for the supply of phosphate shale to its plant. FMC al so explicitly recognized the Tribes’ taxing p ower in one of its m ining agreem ents. FMC agreed to royalty p aym ents and h ad entered int o an agreem ent with the Tribes relating specifi ca l ly to the TERO’s goal o f increased Indian em

p l oym ent and training. There is also the underlying fact that its plantF MC C O R P

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is within reservation b o undaries, although, significantly, on fee and not on tribal land. In

sum , FMC’s presence on the reservation is substantial, both physicall y and in term s o f the m oney involved.

Id. at 1314.

W e therefo r e conclude that the Tribes had regulatory jurisdiction under Montana ’s first jur i s d ictional basis to im pose the perm it fees based o n FMC’s consensual relationship with the Tribes.

b. Second Montana Exception

Und e r Montana ’s second exception, the Tribes m ust dem onstrate that FMC’s c o n duct o n its fee lands w ithin the Reservation “threa t ens or has som e direct effect on the political integrity, the econom ic s e curity, or the health o r welfare of the tribe.” Montana
, 450 U.S. at 566. Under the second exception, a tribe “m ay quite legitim ately seek to protect its mem

bers from noxious uses that threaten tribal welfare or security, or f

rom nonm em

ber conduct on the land that does the sam e.” Plain s Co mmerce Bank
, 554 U.S. at 3 36. Threats to tri b al n atural resources, including those that affect tribal cultural and religious interests, con s t i tute threats to tr i b al self-governance, health and welfare. See,
e.g. , id. at 333; Brendale v. Confederated Tribes & Bands of Yakima Indian Nation
, 492 U.S. 408, 441 (1989); Montana v. U.S. EPA
, 137 F.3d at 1 139, 1141 (“W e hav e p r e v iously recognized that threats to water rights m ay invoke inherent tribal authority over n on-Indians. A tribe retains the inherent power to exercise civil authority over the conduc t o f n onIndians on fee lands w ithin its reservation when that conductF MC C O R P

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threatens or has som e direct effect o n the health and welfare

o f the tribe. This includes conduct that involves the trib e ’s water rights

. . . . [D]ue to the m obile nature of pollutan t s in surface w ater it would in practice be very difficult to separate the effects of water q

uality im pairm ent on non- I n d ian fee land from im

pairm ent o n the triba l portions of the reservation: A wat e r s ystem is a unitary resource. The actions of one user have an imm ediate and direct effect on other users.”) (internal quotation m arks and citations

om itted).

To establish jurisd i ction under Montana ’s second exception, the nonm em

b er’s activities “m

u s t do m ore than injure the [Tribes].” Plains Commerce Bank
, 554 U .S. at 341. The activities m

ust “im p eril the subsistence o r welfare” of the tribal comm

unity. Montana
, 450 U.S. at 566; a ccord Plains Commerce Bank
, 5 5 4 U .S. at 3 41; Evans v. ShoshoneBannock Land Use Policy Comm’n
, 736 F.3d 1298, 1306 (9th Cir. 2013).

Tribal jurisd iction under the second Montana exception

m ay e x ist concurrently with federal regulatory jurisdiction. S ee Tribal Court of Appeals, May 2 014 Opinion, at 5 (discussing the sam e). As we have explained previo u sly, the r e i s “ no suggestion” in the Montana case law that “inherent [tribal] authority e x i s t s only when no other governm ent can act.” Montana v. U.S. EPA
, 137 F

. 3 d at 1141.

W e conclude that FMC’s storage of m illio n s of t ons o f hazardous waste on the Reservation “threat e n s o r has som e direct effect on the political integrity, the econom ic security,

or the health or welfare” of the Tr i b es t o the extent that it “im peril[s] the subsistence or we lfar e” of the Tribes.F MC C O R P

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Montana
, 4 50 U.S. at 566. We base our conclusion on the factual findings of the Tr ibal Court of Appeals, the factual findings and conclusions of the EPA, expert testim ony presented in the Tribal C ourt of Appeals, and the record as a whole. The record contains extensive evidence of t o xic, carcinogenic, and radioactive substances at the FMC site. W e highl i g h t h ere only two sources of contam ination and the threats they pose to th e Tr ibes: elem ental phosphorus in the ground, and phosphine gas in the air.

i. Elem ental Phosphorus in the Ground

M i llions of tons of “ignitable-reactive elem enta l phosphorus,” “high concentrations of arsenic,” an d gamm a radiation contam inate the so i l at the FMC site. EPA, 2013 Unilateral A dmin. Orderfor Remedial Design and Remedial Action
, CERCLA No. 1 0 -2 013-0116, at 7 (June 10, 2 013) (“2013 UAO ”). “The elem e nt a l phosphorus contam ination wi thin the F MC OU alone is at a scale unprece d en t e d anywhere in the United States

. . . .” IRODA at 83. As m u ch

as 16,000 tons of elem ental phosphorus saturate the ground, extend in a plum e at least 85 feet be l ow ground, and
contam inate approxima tely 780,000 cubic yards of soil weighing 1 m illion tons. I RODA at 2 1, 78, 83. This calculated am ount of phosphorus does not include elem ental phosp horus-contam inated wastes that currently sit in ponds

on the FMC si t e , the elem ental phosphorus waste that has

m igrated o r been b lown off-site, and the unknown am ount o f
waste that is contained i n buried rail tanker cars that m ay corrode and leak. IRODA at 9, 14, 83. Th e e le mental phosphorus contam ination at the FMC s i t e poses a serious threa t to hum an health, the environm ent, and the w elfare o f the Tribes. In the EPA’s words, elem ental phosphorus at the FMC site exists “in concentrations exceeding 1,000 parts perF MC C O R P

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m illion (ppm )” in the soil and “will present a significant risk
to hum an h ealth an d th e environm ent should exposure occur.” IRODA at ii; see also id. at 34 (“[R]isks from exposure to ignitable elem ental p hosphorus are severe and highly certain should direct exposure occur.”).

The EPA concluded that the elem ental phosphorus at the FMC site constitutes a “principal threat waste.” IRODA at ii, 77–78. “Principal threat wastes are those source m aterials considered to be highly toxic or highly m obile that g enerally
cannot be reliably contained or would present a significant risk to hum an h e a l th or the environm ent should exposure occur.” Id. at ii–iii. Elem ental phosphorus “ i s highly toxic by ingestion, inhalation, and skin absorption”; “m ay be fatal
at high concentrations; is corrosive to s k i n and other living tissue”; “is likely to caus e skin burns upon contact”; and is pyrophoric, m eaning it will spontane o us ly burst into flam es when exposed to the air, producing phosphine and other toxic gases. Id. at 77– 7 8

. Exacerbating the threat, elem ental phosphorus “has physical properties that are unlike m ost [contam inants of concern] encountered in environm ental response actions,” requiring “special handling techniques not

o nl y for routine handling but also for em ergency response.” Id. at iii, 77–78; see also id

. at 2 8 (concluding that elem ental phosphorus at the FMC site “could ignite, causing burns and inhalation hazards f

rom intensely irritating phosphoric acid aerosols with potential to d rift beyond the imm ediate area.”). “Th e thr eat o f elem ental phosphorus was vividly described by Claudeo Bronco, [a witn es s before the Tribal Court o f Appeals,] who testified that he [saw] du c ks spontaneously ignite as they took off from FMC’s phosphorus containm ent ponds.” Tribal Court of Appeals, May 2014 Opinion, at 6–7.F MC C O R P

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The E PA’s CERCLA plan calls for FMC to place evapotranspiration caps over areas contam inated with elem ental phosphorus. IRODA at 68. However, despite the EPA’s involvem ent at the site since 1990 when the EPA first declared the plant a Superfund S ite, m any areas of th e s i t e, including the area where the tanker railroad c ar s are buried, still had not been capped at the tim e of the 2014 h e aring before the Tr i b a l Court of Appeals. Further, as the EPA wrote, cappin g “ d o es not reduce [ the] toxicity, m obility, o r

v ol ume of contam inants.” Id. at 60. E ven if cappe d
, phosphorus-co ntamin ated soil will rem ain on the Reservation ind e finitely and continue to present a threat to Tribal health and welfare.

ii. Phosphine Gas in the Air

Phosphine gas pro duced from elem ental phosphorus stored in ponds on FMC’s site poses a const an t thr eat to the Tribes. Phosphine gas is “very flamm able,” “ h i g h l y reactive,” and “extrem ely toxic” to hum ans. Letter from K ai Elgethun, Idaho Dep’t of Health and W elfare to Greg W eigel, EPA Idaho Operations Office, at 2–3 (June 1, 2010) (“Letter from Idaho Dep’t of Health and W elfare”); EPA, Unilateral Admin. Order for Removal Action
, FMC Idaho LLC
, CERCLA No. 10-2010-0170, at 9 (June 14, 2010) (“2 0 1 0 UAO ”); see also Expert W itness Testim ony from Dr. Jerrold Leikin and D r. Peter Orris, m em bers of EPA’s Supplem ental Environm ental Project 1 4 for the FMC Si te (discussing the dangers of phosphine gas and the FMC s i t e in particular). Phosphine gas is “imm ediately d angerous to life and health”
at concentrations of 5 0 parts p er m illion (“ppm ”). 2010 UAO at 9. It burns spontaneously u pon contact with a i r and

e xp lodes at concentrations at or near 20,000 ppm

. Id. ; se e also Expert W itness Testim ony of Dr. Jerrold LeikinF MC C O R P

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(describing phosphine as a “knockdown gas,” m eaning a few breaths c an render a person unable to walk or talk, and can

r esult in extrem e harm or eventual death). The sho rt- t e rm upper lim it for hum an exposure is 1 ppm f or 1 5 mi nut es o f exposure. 2010 UAO at 9.

There are eleven RCRA waste ponds on F MC’s property that are supervised under the Consent Decree. Nine of those ponds w ere capped b etween 1999 and 2005. See 2010 UAO

at 8 ; FMC Corp. v. Tribes at *4. The other two were left uncapped. Id. at 9–10. Dangerous levels of phosphine gas build up beneath the evapotranspi r at ion caps on the capped ponds and are released f rom the uncapped pond s. I d

. Although the EPA h as o rdered FMC to im plem ent m easures to contain the gas, releases continue to occur.

I n 2006 and 2010, for exam ple, the EPA en t e r e d Unilateral A dm inistrative Orders (“UAO”) responding to phosphine gas release s from capped and uncapped RCRA ponds. See EPA, Unilateral A dmin. Order fo r Removal Actions
, FMC Idaho LLC
, CERCLA No. 10 -2 0 0 7 -0 0 51 (Dec. 14, 2006) (“2006 UAO ”); 2010 UAO at 10–11 (noting that in 2005, 2006, 2007, and 2009, levels of phosphine gas in the air

ar ound the RCRA ponds w ere high enough that workers in the area either had to d e l ay work or leave the area for their safety).

The EPA reported in its 2 0 0 6 UAO that phosphine gas releases had been detected at RCRA Pond 16S. In June 2006, “interm ittent em issions of sm ok e ” from two tem perature

m onitoring points (“TMP”) had been ob s e rved at the pond. 2006 UAO at 10. Subsequently, “[v]isible air em issions from Pond 1 6 S [were] observed on a num ber of occasi o n s [after] Jun e 2006, including by Shoshone-Bannock T ribal staff o nF MC C O R P

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Septem ber 6, 2 006 and Septem

ber 18, 2006.” Id. FMC h ad reported to the EPA that phosph in e gas w as collecting in TMP w ell casings at Pond 16S, and was “likely accumulating
to the phosphine auto-ig n i tio n co n centratio n (2 0 ,000 parts per

m illion) inside the tem

perature w ell casings or vents.” Id. The E PA concluded that “[t]he conditions at the Site constitute[d] an imm inent and substantial endangerme nt to public h ealth or welfare or the environm ent with i n the

m eaning of Section 106(a) of CERCLA, 42 U. S.C. § 9606(a).” Id. at 13–14 (stating also that the conditions “co n s t i tute a threat to public health or welfare or the

e nvironm ent”). The EPA issued a “tim e critical Ac ti o n Mem orandum on Decem

ber 13, 2006 for Pond 16S to rem o ve and treat phosphine and other gases at levels of concern

. . . . ” Id. at 12–13.

Dr. Peter Orris testified befo r e the Tribal Court o f Appeals that he “absolutely” agreed with the EPA’s findings and conclusions in the 2006 UAO. He testified that the phosphine gas was “b o thacutely and chronically dangerous
to people in the area or d o wnstream , if you will, o r downwind.” “Phosphine g as [ is a] close cousin to the phosgene ga s u s e d in W orld W ar I

. . . that gassed all the soldiers, s o that a high dose short-term exposure can kill people. . . . This is pretty catastrophic stuff.”

The EPA reported in its 2010 UAO that “[p]hosphine gas ha[d] been detected in and around TM Ps and in am bient air
at a num ber of the RCRA Ponds.” 2010 UAO at 9. In late 2009, FMC detected phosphine levels above 1 ppm near Pond 15S, triggering alarm s downwind and requiring evacuations on Novem

ber 2, 23, and 27, and on Decem ber 22. Id. at 11. In Decem

ber 2009 to April 20 10, FMC detected concentrations of phosphine gas as high as 23,000 ppm insideF MC C O R P

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a lift station associated with Pond 1 5S. Id. Daily m onitoring from February t o April 2010 m easured phosphine gas in “am bient air,” at breathing zone height, ranging from 0 to at least 20 ppm

. Id. at 12. The actual concentrations m ay have been m uch higher. The EPA reported, “ [O]n num erous occasions the m onitors [ ] ‘pegged out’ at 20 ppm ,” the upper detection lim it fo r F MC’s m onitors, “indicating som e unknown con c entration higher than 20 ppm .” Id. Another phosphine survey on April 30, 2 010, “p r o v i d ed phosphine readings that averaged 300 ppm ” in another area o f the pond. Id.

FMC first reported the issues with Pond 1 5S to the EPA in a letter dated April 14, 2010. Id. at 11. In response to an EPA request f

or inform ation, F MC sent the EPA m onitoring data from all the RCRA ponds on April 26, 2010. Id. at 12. The data i n d icated that phosphine concentrations in the

amb i e nt air around two m ore p onds—one capped and o n e uncapped—were at or near the upper dete c t i on lim it for FMC’s m onitors. Id

. (Ponds 8E and 17); see id. at 8 for a list of capped and uncapped RCRA ponds.

On June 1, 2010, shortly before the EPA’s rel ease of its 2010 UAO, Dr. Kai Elgethun of the Idah o Departm ent o f Health and W elfare wrote: “W e conclude that the phosphine gas being released from Pond 15S is an urgent public health hazard to the health of people breathing the air in the p ro x imity of Pond 15S

. . . .” Letter from Idaho D ep’t o f Health and W elfare at 1. Pond 15S is approxim atel y 400 m eters south of a road and 6 00 m eter s s o uth of an interstate highway that crosses the Reservation. Id. at 3.

The EPA wrote in the 2 010 UAO: “Action is necessary to protect receptors from inhalation o f phosphine at RCRAF MC C O R P

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Po n d s, and to m inim ize the risk o f fire and explosion fr o m high concentrations of phosphin e gas at the RCRA Ponds.” 2010 UAO at 14. “Receptors,” in the jargon of the EPA, are individuals who m ay be exposed to phosphine gas. The EPA wrote that “receptors” included individuals “at o r n e ar the fa cility boundaries,” such as railroad and power com p any workers, bicyclists and pedestrians on “old Highway 30,” and “m em bers of the Shoshone-Bannock Tribes.” Id

. at 13. The EPA concluded in 2010, as it h ad in 200 6
, that the “[h]igh concentrations of phosphine accum ulating within the [FMC] RCRA Ponds and being released” “con s t itute an imm inent and sub s t an t i al endangerm ent to public health or w elfare o r the environm ent within th e m eaning o f Section 106(a) o f CERCLA, 42 U.S.C. § 9 6 06(a).” Id

. at 13–15. The EPA issued a “tim e critical rem oval Action Mem orandum on June 1 1, 2010, for Ponds 8E, 15S and 1 7 and the other RCRA Ponds, re quiring air m o nitoring and action to rem ove and treat phosphine gas . . . .” Id. at 13.

David Reism an, a f

orm er EPA official who worked at the EPA for thirty-six years, including several years at the FMC site, t e s t i fi ed before the Tribal Court of Appeals that the threat of phosphine gas b eing released f rom the FMC

s ite—both onsite and o ffsite—is “always there.” Re i s man testified that when he visited the FMC site and walked on the caps on the R CRA p onds he obs e rved visually that “they were not well m aintained.” He testified further, “I think the data bears out that there is m oisture and air getting under the cap, and m ixing wi th the waste stream in one fashion o r another.” Reism an n oted that som e phosphine gas is already escaping because of the nature of the evapotranspiration cap. He testified that at a landfill site near Las Ve g as , repeated downpours of rain had caused part of an evapotranspiration cap to slide off the landfill, exposing the waste. If the caps atF MC C O R P

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th e FMC site were to sim ilarly crack o r slide off, Reis man testified, m assive clouds of phosphine gas at lethal exposure levels would be released.

R e ism an testif

ied t h at p ro p er m o n itoring to detect releases of phosphine gas was not being done at the FMC s ite. According to Reism an, m onitoring rem ained “a big question

m ark” under the 2012 IRODA. See also Testim ony of Rob Hartm an , Vice President of FMC Idaho (discussing how a

m on ito rin g p lan f

o r p hosphine gas “has n ot been developed”). Re i s m an t estified that FMC does not have an early warning system in place, stating that he “hope[d] that all parties would look into som e early warn i n g system in case som e of the
catastro phic events w ould occur.” Another expert witness described the m onitoring at the F MC site as “ c o mpletely inadequate.”

The record establis h es that FMC’s RCRA ponds on the Reservation continue to generate leth al am ounts of phosphine gas that accumulate beneath the pond covers. As the district
court wrote, this p hosphine gas “pose[s] a const ant and dead l y threat to the Tribes” and “a real risk of catastrophic

conse qu en c es should containm ent fail.” FMC Corp. v. Tribes , 2017 WL 4322393 at *11.

iii. FMC’s Argum ents

FMC m akes two argum ents in its brief ag ain st ju risdiction under the second Montana exception. Both argum ents fail.

First, FMC argues that the hazardous waste on its site is
conta i n e d, is “actively m onitored by FMC and EPA,” and p os es little danger to the Tribes. FMC writes, “The recor d does not rem o tely support jurisdiction under the secondF MC C O R P

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Mon tana exception.” FMC’s argum ent fails to take into account what is actually in the record.

The hazardous w aste at the FMC site constitutes a serious and continuous threat. The district court sum m arized:

[T]he EPA has t aken substantial steps to contain the toxic waste and prevent harm

. B ut the threat rem ains.

. . . Because the EPA intends to l eave the waste on the site indefinitely, and because the waste’s toxicity h a s such a long life—decades if n o t longer—there is a real risk that n o m atter how well its containm ent system is d esigned
, the system m ay fail.

. . . EPA reports dem onstrate that the waste s i t es are not reservoirs o f passi v e liquid that can be contained with a sim ple d am

. Instead, th e s e sites are generating lethal gases that accum ulate under pressur e beneath the pond covers. In other words, they pose a constant and deadly threat
to the Tr i b e s , a real risk of catastrophic consequences should containm ent fail. And despite the best efforts of the EPA, there have releases of these toxic g a s e s.

. . . This dangerous thr eat can only be contained, not

rem oved or treated.

. . . It is so toxic that there is no safe way to r emo v e it, ensuring that it will rem ain on the Reservation for decades.

FMC Corp. v. Tribes , 2017 WL 4322393 at *10–11.

Second, F MC argues that our decision in E vans v. Shoshone-Bannock L and Use Po licy Comm’n
, 736 F .3d 1298F MC C O R P

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(9th C ir. 2013), com

pels the conc l u s i o n that the Tribes lack jurisdiction. Evans is light years away from the case before

us. In Evans
, we held that the Tr i be s’ Land Use Policy Comm ission did not have jurisdiction under the se cond Montana exception to require a nonm em ber to obt a i n tribal perm its f or the construction of a single-fam ily h om e. W e held that the T ribes h ad n ot established that the construction of one single-fam ily hom e on fe e lan d in an area of the Reserva t i on that already “contain[ed] m any residential properties owned and inh ab ited b y n o nm em bers”—unlike the

area in B rendale v. Confederated T ribes & Bands of Yakima Indian Nation
, 492 U.S. 408 (1989), which was closed to the general public—threatened or had som e direct effect on the political integrity, econom ic security, or the health or welfare of the Tribes. Id. at 1 303–06. In stark contrast to Evans
, the threats from the FMC site, as Dr. Orris te s ti fi ed, “are not

m inim al annoyances. They are the threat o f catastrophic health reactions, including death.”

iv. Nexus

The d istric t c o urt held that due to the extensive
contam ination at the FMC s ite, the T ribes had established jurisdiction under the second Montana exception. However,

as a m atter of com ity, the court re fu sed to enforce the judgm en t o f the Tribal Court o f Appeals under the second exception. In the view of the court, the Tr i bes had f ailed to sufficiently explain the connection b etween the $1.5 m illion annual perm it fee an d the threat posed by the hazardous
waste. C iting Wilson v. Marchington
, 127 F.3d 805 (9th Cir. 1997), the court wrote:

H av in g ju risdictio n under t

h e s eco n d Mo n ta n a exception, the Tribes are authorized to assessF MC C O R P

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a perm it fee that has som e nexus to the costs of supplem enting the EPA’s program to fully protect the health and s afety of Tribal

m em bers. Yet the Tribes have never explained why an annual fee of $1.5 m illion is

nec essary to provide that supplem ental protection.

FMC Corp. v. Tribes , 2017 WL 4322393 at *12.

The district court was m istaken in holding that the Tribes had jurisdiction under the second Montana exception and, at the sam e tim e, holding that the T ribal Court of Appeals’ judgm ent w as not entitled to com ity. The nexus q uesti o n is part of the jurisdictional qu estion. Once jurisdiction is established, lack of nexus is not a ground for denying com ity under Marchington

.

We take it as a given that there m ust be som e n e xu s between a basis fo r jurisdiction under Montana and a tribal action taken in the exercise of that jurisdiction. For exam ple, if the Tribes had ins i s te d under the second Montana exception th at FMC disinvest from its b usinesses in China, such insistence would have been an unreasonable exercise o f jurisdiction. However, there is n othing in Montana requiring that nexus be narrowly define d. There is nothing, for

exam p le, requiring the T ribes to sh o w th at the $1.5 m illion annual use perm it fee be spent on supplem ental m easures, beyond those now being taken by the EPA, to p rotect against hazards posed by FMC’s h azardous waste. There is evidence i n the record suggesting that the Tribes have spent approxim ately $1.5 m illion annually o n m easures to m onitor and m itigate the dangers posed by F MC’s hazardous waste, and indeed that the Tribes m ight spend m ore if funds wereF MC C O R P

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available. But we need not rely on that evidence alone to find

nexus.

A m ore-than-sufficient nexus m ay b e shown by

c om paring fees charged on the open m arket for h azardo u s waste storage, on the o ne hand, to the $1.5 m illion annual fee charged by the Tribes, on the other. FMC’s own evidence in the Tribal Court of Appeals showed that as of 1995,

comm erc i al hazardous waste disposal facilities charged between $50 and $25 0 per ton for bulk disposal (the type o f

m aterials typically disposed of at FMC’s facility). G iven the
extrem e dange r posed by FMC’s hazardous waste, it is an open question whether anyone could be persuaded to accept its waste at any price. But assum ing that som eone would be willing to accept FMC’s hazardous w as t e , and using a

m idrange fee of $150 p er ton, the one-tim e f ee for disposing of FMC’s 22 m illion tons of h az ardous waste would be $3.3 billion. Com

pared to $3.3 billion, an annual f ee o f $1.5 m illion is an extraordinary bargain.

Although we conclude that the Tribes can establish n exus in this case by showing that they charge less than the open

m arket fee for com

p arable activity, we do n ot m ean thereby
to sugges t that a tribe in som e circum stances m ight not be able to charge substantially m ore than an open m arket fee, o r

m ight not be able to forbid waste storage or other activities entirely. W e need not hypothesize cases not before us. It is enough for current purposes to show th at th ere is a m orethan-sufficient nexus between the stor a ge o f FMC’s highly dangerous—potentially catastrophically dangerous—waste and the $1.5 m illion annual use perm it fee t o warrant the

assessm ent of that fee under Montana ’s second exception.F MC C O R P

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2. Adjudicatory Jurisdiction

A tribe’s adjudicatory jurisdiction over nonm em bers m ay not exceed its regulatory jurisdiction. Strate
, 520 U.S. at 453; Water Wheel
, 642 F.3d at 814 (noting that the Suprem e Court has “articulated the general rule that a trib e ’ s a d judicative jurisdiction m ay not exceed its regulatory j urisdiction”). However, the Suprem e Court has never decided wh ether a T rib e’s ad judicatory jurisdiction is necessarily a s exten s i v e a s its regulatory jurisdiction. S ee Water Wheel
, 642 F.3d at 816. Where as here, we hold that the Tribes had regulatory jurisdiction, w e are thus p resented with the question o f whether they also had adjudicatory jurisdiction.

The Court has held that “where tribes possess authority to regulate the activities of nonm em b ers, ‘civil jurisdiction over disputes aris i n g o ut o f such activities presum ptively lies in the tribal courts.’” Strate
, 520 U.S. at 4 53 (citation om itted);

see also Iowa Mut. Ins. Co.
, 480 U.S. at 18 (“Tribal authority

over the activities of non-India ns on reservation lands is an im portant part of tribal sovereignty. Civil jurisdiction over such acti v i t ies presum

ptively lies in the tribal courts unless affirm atively lim ited by a specific treaty provision o r federal statute.” (internal citations om itted)); Knighton
, 92 2 F.3d
at 906 ( d i s c u ssing the sam e); Water Wheel
, 642 F.3d at 814 (disc u s s i n g the sam e). In two recent cases—both involving

nonm em ber conduct on tribal land—we have held that tribes had adjudicatory jurisdiction. See Knighton
, 922 F .3d at 906–07; Water Wheel
, 642 F.3d at 814–16. In b oth cases, we based our holding on the existence of regulatory jurisdiction, the nature o f the tribal sovereign interests, long-standing principles of I n d i an law, and congressional interest in tribal self-governm ent. Based on those sam e factors, we conclude that th e S hoshone-Bannock Tribal Court of Appeals h adF MC C O R P

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adjudicatory jurisdiction over the Tribes’ claim s in this case. See Knighton
, 922 F .3d at 907 (concluding the sam e); Water Wheel
, 642 F.3d at 816 (concluding the sam e). As we stated in Water Wheel
, “Any other conclusion would im perm issibly interfere with the tribe’s inherent sovereignty, c o ntradict long-standing principles the Suprem e Court has re p e atedly recognized, and c o n fl ict with Congress’s interest in prom oting tribal self-governm ent.” 642 F.3d at 816.

B. Due Process

W e held in Wilson v. Marchington th at a federal court

m ust “reject a tribal j u d g m ent if the defendant w as not afforded due proc e ss of law.” 127 F .3d at 8 11. “Due process, as that term is em ployed in com ity,

. . . [requires] that there has been opportunity for a full and fair trial before

an im partial tribunal th at conducts the trial upon regular proceedings after proper servi ce or voluntary appearance o f the defendant, and that there is n o showing of prejudice in the tribal court or in the system o f governing laws.” Id. Com ity, however, “does not require that a tri b e utilize judicial pro c e dures identical to those u sed in the United States Court s

. ” Id. W e m

ust “be careful to respect tribal jurisprudence” as well as tribes’ custom s and traditions. Id. “Extending com ity to tribal judgm ents is not an invitation for [us] to exercise unn e c essary judicial paternalism in der ogation of tribal self-governance.” Id. “However, the tri b a l court proceedings m ust afford the defendant the basic
tenets of due process or the judgm ent will not be recognized by the United States.” Id. F MC argues i t w as d enied d ue process. W e disagree.

FMC’s prim ary argum ent is that two judges on the Tribal Court of Appeals—Judges Gabourie and Pearson—were notF MC C O R P

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im partial. In support o f its argum ent, FMC cites the judges’

rem arks at the conference spons o r ed by the University o f Idaho College of Law. FMC’s argum ent fa i ls for two

reasons.
First, Judges Gabourie and P earson did not m ake any statem ents at the conference indicating bias against FMC. At several points in their rem arks, both judges em phasized the im portance of im

partiality. Transcript of Tribal Court s: Jurisdiction and Best Practices (“Tran script”) at 9 and 19 (stating “every court has—should be im partial”; “a good opinion com es [from ] both sides, both parties. Because both parties rely on a good opinion, strong opinion.”; you “need to

m ake sure that you d o the job rig ht ” ). Although Judges Gabourie and Pearson criticized var i o u s Suprem e Court opinions, including Montana
, disagreem ent with an opinion of the Suprem e Co urt does not indicate that judges cannot faithfully apply that opinion to the case before them

. If such

were the case, federal and state judges would need to recuse them selves with som e f

requency. S

ee, e.g. , Republican Party of Minn. v. White
, 536 U .S. 765, 7 79 (2002) (“[J]udges often
state their views on disputed legal issues outside the context of adjudica t i o n—in classes that they conduct, and in books and speeches.”); In re Complaint of Judicial Miscon d uc t , 632 F.3d 1 289, 1289 (9th C ir. 2 011) (“The Code o f Conduct encourages judges to ‘speak, write, lecture
, teach, and p articipate in other activities concerning the law, the l e g al system , and the adm inistration of justice.’ Engaging in such law-related activities—including speec hes that comm ent on current events and legal developm ents—is perm itted n ot only because judges are citizens, but b ecause they are particularly knowledgeable on such topics.” (internal citations om itted)); In r e Ch arges of Judicial Misconduct
, 769 F.3d 762, 785 (D.C. Cir. 2014) (“[C]riticizing the [Suprem e] Court does notF MC C O R P

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constitute judicial m isconduct.

. . . I t wo u l d be all but im possib l e for a judge to urge changes in the course of the law, or even to comm ent on substantive legal issues, without being able to reference and criticize decisions of the Suprem e Court. Not surprisingly, then, there is a long tradi t i o n o f lower court judges criticizing the Court on issues o f constitutional law [and other areas].”).

Judge Pearson d id m ention at one p o i nt that she h ad a “big case” that she be li eved w as “going to go up,” and that she was sayin g p r ayers, reading cases, and trying to do the history

. Ho wever, she said nothing about the m erits of the

case. Cf

. In re Charges of Judicial Misconduct
, 769 F.3d
at 787–88 (“[N]otwithstanding the general prohi b ition on

comm enting o n the m erits of pending o r im pending m atters, the Code con tains an exception for offering such comm ents in the context of ‘scholarly p resentations m ade for purposes of legal education.’” (citing Canon 3A(6) of the JudicialConduct Rules)).

Second, to the degree Judges Gabourie and Pear son’s

rem arks m ay be thought to have indicated bias against FMC,

a reconstituted panel ofjudges considered the prior rulings o f the Tribal Court of Appeals. The reconstituted panel revised

one aspect of the court’s prio r de c i sion and affirm ed the others. A d ifferently reconstituted pane l th en handled all proceedings going forward, including the hearing o n jurisdiction under Montana ’s second exception. The actions of the reconstitut e d p anels elim inated any possible d ue process concerns arising from the rem arks of Judges Gabourie and Pearson, and from their p articipation in earlier decisions of the Tribal Court of Appeals.F MC C O R P

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FMC m akes other due process argum ents, including that the F ort H all Business Council im p roperly closed the record; that the T ribal Court o f Appeals im properly rejected evidence from FMC as untim ely; that the Tribal Court of Appeals,

r ath e r than the trial court, held an evidentiary hearing; an d that the tribal courts are not independent fr o m th e Fort Hall Busin e s s Council. FMC has either waived these argum ents or they are self-evidently m eritless.

FMC’s due proce s s argum ents are based in part on an und er l y i ng argum ent that, in F MC’s words, tribal courts pres e nt “inherent risks

. . . for denying nonm em bers” d ue process protections. T h e Suprem e C ourt, our circuit, and our sister circuits h ave repeatedly rejected that and other sim ilar argum ents. See, e.g. , Nat’l F a rmers Union Ins. Cos. v. Crow Tri b e of Indians
, 471 U.S. 845, 855–57 (1985) (requiring

nonm em bers to exhaust tribal court rem edies and stating that exhaustion will “ p r o vide other courts with the benefit o f [tribal court] expertise”); Norton v. Ute Indi an Tribe of the Uintah & Ouray Reservation
, 862 F.3d 1236, 1249–50 (10th Cir. 2017) (“W e also reject the officers’ argum ents that they will suffer undue bias and a lack of due process if subjected
to tribal jurisdiction. The officers offer little support for their allegations, which boil down t o b a seless ‘attacks’ on the comp e t e n c e and f

airness o f the Ute Tribal Court. The Suprem e Court has already explained that such argum ents are contrary to federal policy

. . . . The Court h a s also ‘re p eatedly’ recognized tribal courts ‘as appropriate forum s for the exclusive adjudication of d isputes affecting im p ortant personal and property interests o f b oth Indians and nonIndians.’” (citing Iowa Mut. Ins

. Co

. , 480 U.S. at 19; Santa Clara Pueblo
, 436 U .S. at 65; Wheeler
, 435 U.S. at 332 (“[T]ribal courts are im

portant m echanism s for p rotecting significant tribal interests.”))).F MC C O R P

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The Tenth Circuit recently wrote, “Although it is true that the B ill of Rights does not itself constr a i n tribal court proceedings, see Talton v. Mayes , 1 63 U.S. 376, 382–85 (18 9 6)
, this does not leave the rights of nonm em bers unprotected in tribal courts.” Norton
, 862 F.3d at 1 249. “The Indian Civil Rights Act (ICRA), 2 5 U. S.C. § § 1301–04, expre ssly provides that no tribe m ay ‘deny to any person within its jurisdiction the equ al protection of its laws o r deprive any person of liberty o r property without due process of law.’” Id. at 1249–50 (citing 25 U.S.C. § 1302(a)(8)); see al s o Iowa Mut. Ins. Co.
, 480 U.S. at 19 (noting that ICRA “provides n on-Indians with various protections against unfair
treatm ent in the tribal courts”). “Making good on these d ue process guarantees, nearly five decades of tribal cases applying ICRA show that tribal courts protect th e rights o f both m em ber and nonm em

ber litigants in m

uch the sam e way

as do federal and state courts.” N o r ton , 862 F.3d at 1250. “[T]ribal courts often provide litigants with due process that ‘exceed[s] the p rotections o f fered by state and federal courts.’” Id. (second alteration in original ) (c i t ing Matthew L.M. Fletcher, American Indian Tribal Law325 (2011)).

“[E]m pirical stu dies dem onstrate that tribal courts are even-handed in dispensing justice to nonm em bers.” Id .; see, e.g

. , Bethany R. Berger, Justice and the Outsider: Jurisdiction Over Nonmembers in T ribal Just i c e Systems
, 37 Ariz. St. L .J. 1047, 1 047, 1051 (2005) (“Navajo appellate
courts are rem arkably balanced in he ar i ng cases involving outsiders.

. . . The court is both num erically balanced in its decisions regarding nonm em b ers

. . . and qualitatively balanced, even in areas

. . . that m ight seem particularly prone to bias. A less com

prehensive review of decisions from other tribal court system s reveals a sim ilar effort to decide iss ue s fairly, even where it requires ruling against tribal m em bers o rF MC C O R P

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th e tribe itself.”); Mark D. Rosen, Multiple Authoritat i v e Interpreters of Quasi-Constitutional F ederal Law: Of Tribal Courts and the Indian Civil R ights Act , 69 Fordham L. Rev. 479, 578 (2000) (concluding from a study of twelve years o f decisions from approxim ately twenty-five tribal c ourts that “tribal courts have [not] succum bed to the tem

ptation to favor the insider at the expense of outsiders”).

Our own experience in reviewing tribal court decisions is consistent with the f

indings of these s tu d ies. Tribal courts, li ke a l l courts (including our own), m ake m istakes. But, contrary to the contention of F MC, tribal courts d o n ot treat

nonm em bers unfairly.

C. Com ity

Because w e hold that the Tribes had regulatory and adjudicatory jurisdiction under both Montana bases, and that FMC was not denied d

ue p rocess, w e recognize and enforce the Tribal Court o f Appeals’ judgm ents under p rinciples o f

com ity. See AT&T Corp. v. Coeur d ’ Al e n e Tribe
, 295 F.3d
at 9 03. The judgm ent of the Tribal Court of Appeals is enforceable under b oth the first and second Mon tana exceptions. See Wilson v. Marchington , 127 F.3d at 810.

Conclusion

W e hold that the T ribes had regulatory and adjudicatory jurisdiction under both Montana exceptions, and that the Tribal Court of Appeals did not violate FMC’s right to du e process. W e hold that the judgm ent of the Tribal Court o f Appeals is enforceable under principles of com ity.

AFFIRMED.