FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FMC CORPORATION,

Plaintiff-Appellant/

Cross-Appellee,

v.

SHOSHONE-BANNOCK

TRIBES,

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 Winmill, Chief District Judge, Presiding

Argued and Submitted May 17, 2019

Seattle, Washington

Filed November 15, 2019

Before: Michael Daly Hawkins and William A. 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.
2 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

SUMMARY**

Tribal Court Jurisdiction

The panel affirmed the district court’s judgment enforcing

a judgment of the Shoshone-Bannock Tribal Court of

Appeals, which ruled that FMC Corporation must pay an

annual use permit fee for storage of hazardous waste on fee

lands within the Shoshone-Bannock Fort Hall Reservation, as

required under a consent decree settling a prior suit brought

against FMC by the Environmental Protection Agency under

the Resource Conservation and Recovery Act.

The panel 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 may regulate the activities of

nonmembers who enter into consensual relationships with the

tribe or its members. Under the second Montana exception,

a tribe retains inherent power to exercise civil authority over

the conduct of non-Indians on fee lands within its reservation

when that conduct threatens or has some direct effect on the

political integrity, the economic security, or the health or

welfare of the tribe. The panel held that, under the first

Montana exception, the Tribes had regulatory jurisdiction to

impose the permit fees because FMC entered into a

consensual relationship when it signed a permit agreement

with the Tribes. The panel held that FMC’s conduct of

storing hazardous waste on its fee lands within the reservation

fell within the second Montana exception. The panel held

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 3

that the district court erred in refusing, as a matter of comity,

to enforce the judgment of the Tribal Court of Appeals under

the second exception. The panel held that, in addition to

regulatory jurisdiction, the Tribes had adjudicatory

jurisdiction.

The panel also held that the Tribal Court of Appeals did

not deny FMC due process through a lack of impartiality.

COUNSEL

Gregory G. Garre (argued), Elana Nightingale Dawson, and

Genevieve P. Hoffman, Latham & Watkins LLP,

Washington, D.C.; Ralph H. Palumbo, Yarmuth Wilsdon

PLLC, Seattle, Washington; Lee Radford, Parsons Behle &

Latimer, Idaho Falls, Idaho; Maureen L. Mitchell, Fox

Rothschild LLP, Seattle, Washington; for PlaintiffAppellant/Cross-Appellee.

Douglas B. L. Endreson (argued) and Frank S. Holleman,

Sonosky Chambers Sachse Endreson & Perry LLP,

Washington, D.C.; William F. Bacon, Shoshone-Bannock

Tribes, Fort Hall, Idaho; Paul C. Echo Hawk, Echo Hawk

LawOffice,Pocatello, Idaho; for Defendant-Appellee/CrossAppellant.
4 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

OPINION

W. FLETCHER, Circuit Judge:

For over 50 years, FMC Corporation (“FMC”) operated

an elemental phosphorus plant on fee land within the

Shoshone-Bannock Fort Hall Reservation (“Reservation”) in

Idaho. FMC’s operations produced approximately 22 million

tons of hazardous waste that is currently stored on the

Reservation. The waste is radioactive, carcinogenic, and

poisonous.

In 1990, the U.S. Environmental Protection Agency

(“EPA”) declared FMC’s plant and storage area, together

with an adjoining off-reservation plant owned by J.R.

Simplot, a Superfund Site under the Comprehensive

Environmental Response, Compensation and Liability Act

(“CERCLA”). In 1997, the EPA further charged FMC with

violating the Resource Conservation and Recovery Act

(“RCRA”). A Consent Decree settling the RCRA suit

required FMC to obtain permits from the Shoshone-Bannock

Tribes (“the Tribes”). FMC and the Tribes negotiated an

agreement under which FMC agreed to pay $1.5 million per

year for a tribal use permit allowing storage of hazardous

waste. FMC paid the annual use permit fee from 1998 to

2001 but refused to pay the fee in 2002 after ceasing active

plant operations. FMC has continued to store the hazardous

waste on the Reservation despite its failure to pay the use

permit fee.

The Tribes sued FMC in Tribal Court, seeking inter alia

payment of the annual $1.5 million use permit fee for waste

storage. Under Montana v. United States, 450 U.S. 544

(1981), there are two potentially relevant bases for tribal
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 5

jurisdiction in this case—two of the three so-called “Montana

exceptions.” First, “[a] tribe may regulate, through taxation,

licensing, or other means, the activities of nonmembers who

enter consensual relationships with the tribe or its members,

through commercial dealing, contracts, leases, or other

arrangements.” Id. at 565. Second, “[a] tribe may also retain

inherent power to exercise civil authority over the conduct of

non-Indians on fee lands within its reservation when that

conduct threatens or has some direct effect on the political

integrity, the economic security, or the health or welfare of

the tribe.” 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 FMC owed $19.5 million in

unpaid use permit fees for hazardous waste storage from2002

to 2014, and $1.5 million in annual fees going forward.

After the decision of the Tribal Court of Appeals, FMC

sued the Tribes 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 due

process because two judges on the Tribal Court of Appeals

were biased against FMC; and that the judgment by the Tribal

Court of Appeals was unenforceable. The Tribes

counterclaimed, seeking an order recognizing and enforcing

the judgment of the Tribal Court of Appeals. The district

court held that the Tribes had regulatory and adjudicatory

jurisdiction under both Montana exceptions, that the Tribal

Court of Appeals had not denied FMC due process, and that

the Tribal Court of Appeals’ judgment was entitled to comity,

and was therefore enforceable, under the first but not the

second Montana exception.
6 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

FMC appeals the district court’s judgment in favor of the

Tribes. The Tribes cross-appeal the district court’s decision

that the Tribal Court of Appeals’ judgment is not enforceable

under the second Montana exception.

We affirm the judgment of the district court. We hold

that the judgment of the Tribal Court of Appeals is

enforceable under both Montana exceptions.

I. Factual and Procedural Background

The Shoshone-Bannock Tribes are a federally recognized

Indian tribe comprising the eastern and western bands of the

Northern Shoshone and the Bannock, or Northern Paiute,

bands. The Tribes are organized under the Indian

Reorganization Act of 1934, 25 U.S.C. §§ 5101 et seq., and

are governed by the Fort Hall Business Council, a legislative

body consisting of seven elected members. 

Shoshone-Bannock Tribes, Tribal Government,

http://www2.sbtribes.com/government (last visited Sept. 19,

2019). The ancestral lands of the Tribes included land in

present-day Idaho, Oregon, Nevada, Utah, Wyoming,

Montana, and parts of Canada. See Shoshone-Bannock

Tribes, http://www2.sbtribes.com/about (last visitedSept. 19,

2019). Pursuant to the Fort Bridger Treaty of 1868, 15 Stat.

673, and related executive orders, the Tribes today have

sovereign authority over the Fort Hall Reservation. The Fort

Hall Reservation originally encompassed approximately

1.8 million acres, or 2,800 square miles. See id. The

Reservation now encompasses approximately 544,000 acres,

or 840 square miles, in what is now southeastern Idaho. 

Ninety-seven percent of the Reservation is tribal land or land

held in trust by the United States for the benefit of the Tribes
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 7

and their members. Approximately three percent of the

Reservation is fee land owned by non-members.

A. FMC’s Phosphorus Plant, Consent Decree, and Permit

Fees

From 1949 to 2001, FMC Corporation and its

predecessors owned and operated an elemental 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 elemental phosphorus plant in the world. 

FMC Idaho,Plant History, http://fmcidaho.com/plant-history

(last visited Sept. 19, 2019). For most of its operation, FMC

obtained or mined raw materials for its plant from tribal and

allottee lands on the Reservation. See, e.g., id.

Hazardous waste from the plant’s 52 years of operation

contaminates FMC’s land on the Reservation. Approximately

22 million tons of hazardous waste are stored in waste storage

ponds on the site. Some storage ponds are capped. Some are

not. Some ponds are lined. Some are not. Phosphorus,

arsenic, and other hazardous materials contaminate an

additional 1 million tons of loose soil and groundwater

throughout the site. Millions of tons of slag containing

radioactive materials contaminate the site. Somewhere

between twenty one and thirty railroad tanker cars containing

toxic phosphorous sludge are buried on the property. There

is no lining underneath the tanker cars and no cap above

them. As will be described in greater detail below, the

hazardous waste in the storage ponds, tanker cars, soil,

groundwater, and air at the site is radioactive, carcinogenic,

and poisonous.
8 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

In 1990, EPA declared the FMC plant, as well as an

adjoining off-reservation plant owned by a different

company, J.R. Simplot, as a National Priority List

Superfund Site—the “Eastern Michaud Flats” site—under

CERCLA. See 55 Fed. Reg. 35502, 35507. The National

Priorities List is a list of the nation’s “worst hazardous

waste sites.” EPA, Superfund Cleanup Process,

https://www.epa.gov/superfund/superfund-cleanup-process

(last visited Sept. 19, 2019).

In 1997, EPA charged FMC with violating RCRA. 

RCRA regulates the disposal of solid and hazardous waste. 

To avoid litigation, FMC began negotiations with the EPA

over the terms of a possible Consent Decree that would settle

the RCRA suit. Though not a formal party, the Tribes

participated in the negotiations. Among other measures, the

proposed RCRA Consent Decree required construction of a

treatment facility and additional waste storage ponds on

FMC’s fee land on the Reservation. As a condition to

obtaining the Consent Decree, the EPA required FMC to

obtain relevant permits from the Tribes. See Consent Decree,

Case No. 4:98-cv-00406-BLW (D. Idaho, July 13, 1998).

Pursuant to the Tribes’ Land Use Policy Ordinance

(“LUPO” or “Ordinance”) and associated Guidelines, the

relevant tribal permits included a building permit for

construction of the treatment facility and waste storage ponds,

and a use permit for storage of the hazardous waste. FMC

and the Tribes met in July 1997 to discuss the permits. 

During negotiations, FMC consented to tribal jurisdiction. 

See, e.g., Letter from the Land Use Policy Commission to

FMC (Aug. 6, 1997) (stating that following the July meeting,

“We understood that FMC would recognize tribal jurisdiction

within the exterior boundaries of the Fort Hall Indian
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 9

Reservation.”); Letter from J. Paul McGrath, Senior Vice

President and General Counsel and Secretary of FMC, to the

Fort Hall Business Council, Shoshone-Bannock Tribes

(Oct. 30, 1997) (stating “[i]n connection with the land use

permit, we did agree that we would consent to tribal

jurisdiction in that area”). FMC applied for the building and

use permits in August 1997.

While negotiations were proceeding, the Tribes

considered and then adopted amended LUPO Guidelines for

storage of hazardous waste on the Reservation. The Tribes

finalized the amended Guidelines in April 1998. The

amended Guidelines required an annual use permit forstorage

of hazardous waste on the Reservation, with an annual fee of

$5.00 per ton. Money from use permit fees was to be

“deposited in the Shoshone-Bannock Hazardous Waste

Management Program Fund,” and to be used “to pay the

reasonable and necessary costs of administrating the

Hazardous Waste Management Program.” Amendments to

Chapter V: Fort Hall Land Use Operative Policy Guidelines,

§ V-9-2(B) (1998).

The Land Use Policy Commission (“LUPC” or

“Commission”), the Tribes’ administrative and enforcement

body for the Ordinance, notified FMC of the amended

Guidelines. FMC estimated that the $5 per ton storage fee

would cost over $110 million per year. FMC sought to

negotiate a compromise with the Tribes. FMC Corp. v.

Tribes, No. 4:14-CV-489-BLW, 2017 WL 4322393, at *2

(D. Idaho Sept. 28, 2017).

In May and June 1998, the Tribes and FMC negotiated an

agreement under which FMC agreed to a one-time fee of

$1 million and an annual use permit fee of $1.5 million to
10 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

cover FMC’s storage of its hazardous waste on the

Reservation. See Letter from LUPC to FMC (May 19, 1998). 

The parties agreed that FMC was required to obtain a use

permit and to pay the $1.5 million fee even if FMC capped

and closed the eleven hazardous waste ponds that were

subject to the RCRA Consent Decree (the “RCRA ponds”). 

See id. (stating that FMC agreed to pay the annual use permit

fee “beginning on June 1, 1999, and for every year

thereafter”); Letter from J. Paul McGrath, Senior Vice

President and General Counsel and Secretary of FMC, to

LUPC (June 2, 1998) (“[I]t is our understanding that the

permit covers the plant and that the $1.5 million annual fee

would continue to be paid for the future even if the use of

ponds 17–19 was terminated in the next several years.”);

Affidavit of Robert J. Fields, Division Manager of FMC

(Oct. 20, 2000) (stating that he participated in the

negotiations with the Tribes and that the June 2, 1998 letter

from FMC was intended to confirm FMC’s shared

understanding that the use permit covered the entire facility

and that FMC’s agreement to pay $1.5 million per year would

not end when Ponds 17, 18 and 19 were closed pursuant to

the Consent Decree). FMC paid its first fee on June 1, 1998.

A few months later, FMC and the EPA agreed to a

Consent Decree to settle the RCRA suit. FMC Corp. v.

Tribes, 2017 WL 4322393 at *3. Paragraph 8 of the Consent

Decree memorialized the Decree’s requirement that FMC

obtain permits from the Tribes: “Where any portion of the

Work requires a . . . tribal permit or approval, [FMC] shall

submit timely and complete applications and take all other

actions necessary to obtain all such permits or approvals.” 

See Consent Decree, No. 4:98-CV-00406-BLW, ¶ 8 (D.Idaho

July 13, 1998).
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 11

Pursuant to the Consent Decree, FMC agreed to pay a fine

to the U.S. government of $11.9 million, to install a range of

upgrades in its handling of waste, and to cap nine of the

eleven RCRA ponds covered by the Consent Decree. FMC

Corp. v. Tribes, 2017 WL 4322393 at *3. Between 1999 and

2005, FMC capped and/or closed the RCRA ponds. 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

permit fee of $1.5 million pursuant to its 1998 agreement

with the Tribes. In December 2001, FMC stopped all active

phosphorus processing operations at the site. When the

$1.5 million use permit fee came due in 2002, FMC refused

to pay it.

After negotiations failed, the Tribes filed a motion in the

RCRA Consent Decree action in federal district court,

seeking a declaration that FMC was required by the Consent

Decree to obtain tribal permits for waste storage on the

Reservation. Id. The district court held that “(1) the Tribes

had jurisdiction over FMC under the first Montana exception

. . . , (2) FMC was required to apply for Tribal permits based

on FMC’s agreement to submit to tribal jurisdiction in ¶ 8 of

the RCRA Consent Decree, (3) the Tribes were intended

third-party beneficiaries of the Consent Decree and therefore

had a right to enforce its terms, and (4) FMC was required to

exhaust tribal remedies over any challenges to the Tribal

permit decisions.” FMC Corp. v. Tribes, 2017 WL 4322393

at *4; see United States v. FMC, No. CV-98-0406-E-BLW,

2006 WL 544505 (D. Idaho 2006).
12 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

On appeal from the district court, we addressed only the

third of the district court’s holdings. We held that the Tribes

were incidental rather than intended beneficiaries of the

Consent Decree and therefore had no right to judicial

enforcement of the Decree. United States v. FMC, 531 F.3d

813, 815 (9th Cir. 2008). We remanded to the district court

with instructions to dismiss the Tribes’ suit. Id. at 824. 

However, we noted that during the pendency of the appeal to

our court “FMC began the process of applying for tribal

permits, which is the main relief that the Tribes have sought

in this action.” Id. at 823. We explicitly noted and relied on

a representation by FMC. We wrote:

At oral argument, the Tribes expressed their

concern that, if we were to hold that the

Tribes lack standing to enforce the Consent

Decree, FMC would withdraw its permit

applications and undo the progress made to

date on the proper resolution of this dispute. 

In response to questioning from the panel,

FMC’s lawyer represented to the court that

FMC understands that it has the obligation to

continue, and will continue, with the current

tribal proceedings to their conclusion. We

accept that statement from counsel as binding

on FMC.

Id. at 823–24.

C. Tribal Proceedings

In 2006, after entry of the district court’s order but while

FMC’s aforementioned appeal to our court was still pending,

FMC applied to the Tribes’ Land Use Policy Commission for
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 13

a building permit for demolition activities and a use permit

for continued storage of the waste. Following notice and a

public hearing, the Commission granted FMC’s applications

for the two permits. See Findings of Fact and Decision on

FMC Application for Building Permit for Activities at the

FMC Pocatello Plant (Land Use Policy Commission, Apr. 25,

2006); Findings of Fact and Decision on FMC Application

for Special Use Permit for Activities at the FMC Pocatello

Plant (Land Use Policy Commission, Apr. 25, 2006). The

Commission concluded that it had regulatory jurisdiction

under both Montana exceptions to require FMC to obtain the

permits. The Commission assessed a one-time building

permit fee at $3,000 for demolition activities during that year. 

The Commission also assessed FMC’s use permit fee for

storage of hazardous waste at the previously agreed

$1.5 million annual rate. The Commission provided, as an

alternative, that FMC could choose to pay the higher $5 per

ton fee based on the weight of the waste stored on FMC’s

property on the Reservation, pursuant to the Tribes’ amended

Guidelines. Id.

FMC appealed the Commission’s decision to the

governing body of the Tribes, the Fort Hall Business Council

(“Council”). On July 21, 2006, the Council affirmed the

Commission’s decision. Fort Hall Business Council Decision

Regarding FMC’s Appeals of the April 25, 2006 Land Use

Permit Decisions (July 21, 2006). On February 8, 2007, the

Commission issued a “letter resolution” setting the use permit

fee at the agreed-upon $1.5 million. FMC again appealed the

Commission’s decision to the Council. On June 14, 2007, the

Council affirmed the Commission’s decision.

FMC appealed the Council’s and the Commission’s

decisions to the Tribal Court. (The Shoshone-Bannock tribal
14 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

court system consists 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 submit their Land Use

PolicyGuidelines and the Hazardous Waste ManagementAct

of 2001, upon which the tribal use permit requirement was

premised, 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 been approved

by the Secretary of the Interior, and therefore, were

unenforceable as a matter of tribal law.

In June 2008, the Tribes and FMC cross-appealed to the

Tribal Court of Appeals. The members of that court were

Judges Fred Gabourie, Mary Pearson, and Cathy Silak. None

of them is a member of the Shoshone-Bannock Tribes. Judge

Gabourie is a former California state court judge, former

Chief Judge for the Kootenai Tribe of Idaho, and a former

prosecutor and city attorney. Judge Pearson is a former Chief

Judge for the Spokane Tribe and the Coeur d’Alene Tribe. 

Judge Silak is a former Justice of the Idaho Supreme Court.

1. Conference Remarks by Judges Gabourie and Pearson

While the case was pending before the Tribal Court of

Appeals, Judges Gabourie and Pearson spoke at a conference

entitled “Tribal Courts: Jurisdiction and Best Practices”

convened by the University of Idaho College of Law on

March 23, 2012. In the audience were law students, tribal

court practitioners, other lawyers, and members of the public. 
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 15

The conference was videotaped. FMC’s counsel attended the

judges’ presentation.

Judge Gabourie described the manner in which tribal

appellate court decisions come before federal courts, and he

noted that very few federal court judges have experience with

tribes. He stated that “every court has—should be impartial”

and “a good opinion comes [from] both sides, both parties. 

Because both parties rely on a good opinion, strong opinion.” 

He stated that a tribal appellate court decision should discuss

the tribe’s tradition and culture so that judges in the federal

system have some context when they read the decision. He

stated that an appellate judge has a responsibility to remand

the case for testimony from expert witnesses if there is a

weakness in the record. He discussed limitations on tribes’

sovereign powers under current law, and how, in light of

Supreme Court decisions like Montana, “which has just been

murderous to Indian tribes,” it is important for tribes to

support good appellate courts that can issue strong opinions

in the event issues are heard in a federal court. He discussed

Nevada v. Hicks, 533 U.S. 353 (2001), and Strate v. A-1

Contractors, 520 U.S. 438 (1997), noting that the tribal

appellate court decisions had not been good, and that, as a

result, the U.S. Supreme Court did not have vital information

about the tribes’ cultures and traditions.

Judge Pearson discussed the importance of tribal

attorneys creating a record at the tribal trial court level. She

stated tribal attorneys should involve the tribe in the “big

cases.” She noted that they had a big case at that moment that

they knew was “going to go up,” so they were saying prayers,

reading cases, and “trying to do . . . the history.” She

described Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th

Cir. 2001), as a case where the tribal lawyers had effectively
16 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

laid out the history for the tribal trial and appellate courts. 

She discussed the importance of this responsibility—how

“[you] just need to make sure that you do the job

right”—since non-Indian federal judges were reviewing the

decisions.

In response to questions, Judge Gabourie discussed the

value of anthropologists and scientists testifying in tribal

court cases. He stated that the use of experts in Bugenig was

a model for tribes seeking to protect their sovereignty,

traditions, and cultures. Expanding on his earlier discussion

of experts, Judge Gabourie stated:

You know, there’s one area, too, there are

tribes that have had mining and other

operations going on, on the reservation, you

know, and then the mining company or

whatever, manufacturing company,

disappears. They leave, you know. They’ve

. . . either dug everything they could, and then

the ground is disturbed, sometimes polluted

beyond repair. And you sit as . . . an appellate

court justice, and you’re starting to read the

cases that come down from the tribal court. 

And you’re saying to yourself, you know, we

know that . . . there’s pollution, that the food

that they’re eating is polluted, the water’s

polluted, but nobody proved it. And while

John Jones said that it is polluted, you know,

John Jones don’t count. But the tribal courts

have got to realize that you need expert

witnesses. You need chemists and whatever

to get out of testifying. It may cost a little, but
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 17

so the appellate court is in a position of

remanding that case back and say “do it.”

You know, you made—and you’re really

being fair to both sides. . . . That’s why you

need the expert witnesses to cover those loose

ends, you know, so when it finally goes to

the—whatever circuit it may go to, they can

see that there’s been some experts testifying

on behalf. Maybe experts that testify on

behalf of the mining company, but experts

nonetheless. Well, you can be damn sure that

the mining company’s going to spend the

money to protect their interest, you know.

So the appellate courts have got to step in and

in their own way, make a good, balanced

decision, a hundred-percenter for both sides,

but be sure to protect the tribe. And that’s my

own opinion, that last sentence.

Judge Pearson clarified, “We’re not guaranteeing anybody

anything.” Judge Pearson advised the audience:

Well, I encourage you to get the Bugenig

handouts, because it’s really important. If

you’re a law student and you’re going to

practice law, as well as if you’re a judge and

you’re going to be hearing cases, you know

where—companies come on the reservations

and do business for X number of years and

they dirty up your groundwater and your other

things, and they go out of business. And they

leave you just sitting. And you need to know
18 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

what you can do as you’re sitting as a judge

with those cases coming toward you.

2. Decisions of the Tribal Court of Appeals

Just over a month later, on May 8, 2012, the Tribal Court

of Appeals issued an opinion holding inter alia that (1) the

Tribes have regulatory and adjudicatory jurisdiction over

FMC under the first Montana exception to require FMC to

obtain a building permit for demolition and construction, and

a use permit for hazardous waste storage, and to require FMC

to pay the agreed-upon annual use permit fee of $1.5 million;

(2) the use permit fee was authorized by and enforceable

under tribal law, because, inter alia, the Land Use Policy

Ordinance and the Hazardous Waste Management Act were

both approved by the Secretary of the Interior consistent with

tribal law; and (3) the Tribal Court erred in failing to consider

whether the Tribes have jurisdiction under the second

Montana exception. The court issued an amended order on

June 26, 2012. FMC Corp. v. Shoshone-Bannock Tribes

Land Use Dep’t and Fort Hall Bus. Council, Amended, Nunc

Pro Tunc Findings 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, 2012)

(“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 and Pearson’s remarks at the law school

conference. In April 2013, Judges Peter McDermott and

Vern Herzog Jr. replaced Judges Gabourie and Pearson on the

Tribal Court of Appeals. Judge McDermott is a retired Idaho

state district court judge. Judge Herzog is a practicing
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 19

attorney. Neither is a member of the Shoshone-Bannock

Tribes. Judge Silak remained on the court.

On May 6, 2013, FMC filed briefs asking the

reconstituted Tribal Court of Appeals to reconsider its prior

rulings on the ground that the statements by Judges Gabourie

and Pearson showed bias against FMC. In an order dated

May 28, 2013, the Tribal Court of Appeals revised its earlier

ruling on an issue unrelated to the questions now before us. 

It upheld its earlier rulings on all other issues. The court

ordered an evidentiary hearing to resolve the question

previously left open—whether the Tribes had regulatory and

adjudicatory jurisdiction over FMC under the second

Montana exception.

From April 1 to April 15, 2014, the Tribal Court of

Appeals held an evidentiary hearing on the second Montana

exception. Judge Silak was not available for the hearing. 

Judge John Traylor replaced Judge Silak. Judge Traylor is a

practicing attorney. He is not a member of the ShoshoneBannock Tribes. Judges McDermott and Herzog remained on

the court. Following the hearing, the Tribal Court of Appeals

made factual findings and held that the Tribes had regulatory

and adjudicatory jurisdiction under the second Montana

exception. See Shoshone-Bannock Tribes Land Use Dep’t

and Fort Hall Bus. Council v. FMC Corp., Opinion, Order,

Findings of Facts and Conclusions of Law (ShoshoneBannock Tribal Court of Appeals, May 16, 2014) (“Tribal

Court of Appeals, May 2014 Opinion”); see also ShoshoneBannock Tribes Land Use Dep’t and Fort Hall Bus. Council

v. FMC Corp., Statement of Decision (Shoshone-Bannock

Tribal Court of Appeals, Apr. 15, 2014) (“Tribal Court of

Appeals, Statement of Decision”).
20 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

In 2012, prior to the decision of the Tribal Court of

Appeals, the EPA had issued an Interim Amendment to the

Record of Decision (“IRODA”) under CERCLA addressing

the FMC Operable Unit (“OU”) of the Eastern Michaud Flats

Superfund Site. See EPA, Interim Amendment to the Record

of Decision for the EMF Superfund Site, FMC Operable Unit,

Pocatello, Idaho (Sept. 2012) (“IRODA”). The IRODA

replaced an earlier 1998 Record of Decision (“ROD”). EPA

concluded that it needed to issue the IRODA because the

human health and environmental threats at the FMC site were

greater than anticipated, there were “immediate” threats to

human health and the environment, and EPA “no longer

considered” the 1998 ROD “protective of human health and

the environment.” IRODA at v, 14, 52; see also id. at ii, 16,

20.

The IRODA noted the particular dangers of the elemental

phosphorus present at the FMC site: Elemental phosphorus

is an “ignitable and reactive waste” that has “physical

properties unlike most contaminants of concern . . .

encountered in environmental response actions.” Id. at iii. 

Due to these characteristics, elemental phosphorus “requires

special handling techniques not only for routine handling but

also for emergency response.” Id. The IRODA noted that the

remedial work completed under the RCRA Consent Decree

was independent of the remedial work that remained to be

done under CERCLA. Id. at v.

The IRODA outlined an extensive, multi-part “interim

amended remedy” to be implemented on the FMC site. The

IRODA included the following remedial measures: (1) place

evapotranspiration caps over eight “remediation areas” on the

Reservation containing “non-slag fill (such as elemental

phosphorous, phossy solids, precipitator solids, . . . ),” id.;
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 21

(2) place “approximately 12 inches of soil cover over areas

containing slag fill, ore stockpiles, and the former Bannock

Paving areas to prevent [] exposure to gamma radiation and

fugitive dust,” id. at iii–iv; (3) “[c]lean underground

reinforced concrete pipes that contain elemental phosphorous

and radionuclides,” id. at iv; (4) “[i]nstall an interim

groundwater extraction/treatment system to contain

contaminated groundwater, thereby preventing contaminated

groundwater from migrating beyond the FMC OU and into

the Simplot OU and/or adjoining springs or the Portneuf

River,” id.; (5) “[i]mplement a long-term groundwater

monitoring program to evaluate the performance of the soil

and groundwater remedial actions,” id.; and (6) “[i]mplement

a gas monitoring program at the FMC OU capped ponds (also

referred to as the CERCLA Ponds to distinguish them from

the RCRA-regulated ponds) and subsurface areas where

elemental phosphorous is present to identify potential

phosphine and other potential gas generation at

concentrations that could pose a risk to human health,” id.

(emphasis in original).

In its brief to us, FMC wrote, “The IRODA—which

remains in effect today—requires an additional set of

remedial actions that EPA has concluded are appropriate and

fully ‘protective of human health and the environment.’” 

(emphasis added.) FMC’s brief misrepresents what the EPA

wrote. The EPA did not write that the interim remedial

measures described in the IRODA would be “fully”

protective. Here is what the EPA wrote in the IRODA,

specifying that the remedial measures are “interim” (which

FMC’s brief failed to mention), and not using the word

“fully” (which FMC’s brief supplied):
22 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

The measures in this selected interim

amended remedy will be protective of human

health and the environment, comply with

federal and state/tribal requirements that are

applicable or relevant and appropriate within

the scope of the selected interim amended

remedy, and result in cost-effective action and

utilize permanent solutions and alternative

treatment (or resource recovery) technologies

to the maximum extent practicable.

IRODA at v (emphasis added to indicate words quoted in

FMC’s brief).

The IRODA went on to specify:

Because the selected interimamended remedy

will result in hazardous substances, pollutants,

or contaminants remaining on the FMC OU

above levels that allow for unrestricted use

and unlimited exposure, a statutory review

will be conducted within 5 years after

initiation of the remedial action, and every 5

years thereafter to ensure that the interim

amended remedy is or will [sic] protect

human health and the environment.

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, whose factual findings were not contested by FMC.

See e.g., Tribal Court of Appeals, May 2014 Opinion, at 6

n.2. The Tribal Court of Appeals found that “FMC created
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 23

and continues to store millions of tons of toxic waste on its

fee land within Reservation boundaries.” Id. at 5. This

hazardous waste includes (1) as much as 16,000 tons of

elemental phosphorus that leaked into the soil during

production and now contaminates approximately 780,000

cubic yards of soil weighing approximately 1 million tons;

(2) elemental phosphorus that is “suspended in contaminated

water” and contained in 23 waste storage ponds on the site;

(3) “phosphine gas,” which is produced when elemental

phosphorus is exposed to water; (4) approximately 21 tanker

rail cars that were used to ship hazardous elemental

phosphorous sludge and are now buried in unlined soil on the

site; and (5) groundwater contaminated with arsenic and

phosphorus that flows into important ground and surface

water resources on the Reservation. Id. at 5–7 (citing IRODA

at 7–9). “The site was also filled and graded using millions

of tons of slag that contains radioactive materials which emit

gamma radiation in excess of EPA’s human health safety

standards.” Id. at 6 (citing IRODA at 7–9).

The Tribal Court of Appeals found that FMC’s creation

and storage of this hazardous waste on the Reservation

creates “an ongoing and extensive threat to human health”

and threatens the “welfare and cultural practices of the Tribes

and their members.” Id. at 5. “The elemental phosphorus in

the soil and in containment ponds [on] FMC’s land is

reactive, meaning that it will burst into flames when exposed

to oxygen.” Id. at 6 (citing IRODA at 77). “The phosphorus

itself is toxic when ingested, inhaled or absorbed.” Id. (citing

IRODA at 78). Phosphine gas, which “is harmful and even

deadly to humans at certain levels,” has been released from

the site at dangerous levels. Id. at 7 (citing IRODA at 77). 

The tanker rail cars buried at the site contained “from 200 to

2,000 tons of elemental phosphorus sludge, 10–25% of which
24 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

remained in each of the tankers at the time they were buried”

because FMC concluded cleaning them was “dangerous” to

employees. Id. at 7–8. These tankers remain in the ground

today, and “it is possible that they either have or will corrode

to the point of leakage.” Id. “Arsenic and phosphorus from

the site are continuously flowing in the groundwater from

FMC’s land through seeps and springs directly into the

Portneuf River and Fort Hall Bottoms.” Id. at 8. This

groundwater contamination “negatively affects the ecosystem

and subsistence fishing, hunting and gathering by tribal

members at the River, as well as the Tribes’ ability to use this

important resource as it has been historically used for cultural

practices, including the Sundance.” Id.

The Tribal Court of Appeals stated that “FMC does not

challenge” that the hazardous materials present at the FMC

site “do pose a threat” to the Tribes. Id. at 9. “Rather, [FMC]

contends that if certain methods suggested by the EPA are

undertaken and properly implemented by FMC in the future,

the risk will be contained.” Id. But the court found that EPA

itself continues to view FMC’s site as dangerous to public

health and welfare. For example, in 2013, a year after the

issuance of the IRODA, the EPA wrote that hazardous waste

at the FMC site “may constitute an imminent and substantial

endangerment to public health or welfare or the

environment.” Id. (quoting EPA, Unilateral Admin. Order

for Remedial Design and Remedial Action, No. CERCLA-10-

2013-0116, at 9–10 (June 10, 2013)). Further, the court

wrote, “Although the EPA has been involved at this site since

1990, remedial actions chosen by the EPA have not been

implemented” and many “proposed remedial actions are still

in design phase only.” Id. “EPA’s IRODA is itself only an

interim measure.” Id. “[A] final Record of Decision will not

be available for five to ten years.” Id. (citing IRODA at 19). 
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 25

“EPA’s plans remain just that: Plans.” Id. In addition,

“EPA’s plans are containment plans,” which would keep the

hazardous wastes on the Reservation “for the indefinite

future.” Id.

The Tribal Court of Appeals held that the Tribes had

regulatory and adjudicatory jurisdiction over FMC under the

second Montana exception. It concluded that FMC’s storage

of millions of tons of toxic waste on the Reservation poses a

serious threat, and has a direct effect on, “the political

integrity, the economic security or the health or welfare of the

[Tribes].” See Tribal Court of Appeals, May 2014 Opinion

at 14–15; Tribal Court of Appeals, Statement of Decision

at 29–32. The Court concluded that this threat “is real; it is

not a mere potential,” and is a threat of catastrophic

consequences to the Tribes. Tribal Court of Appeals,

May 2014 Opinion, at 11.

On May 16, 2014, the Tribal Court of Appeals issued a

final judgment, holding FMC liable for an annual use permit

fee of $1.5 million. See Shoshone-Bannock Tribes Land Use

Dep’t and Fort Hall Bus. Council v. FMC Corp., Judgment

and Order for Attorney Fees and Costs, May 16, 2014. The

court assessed FMC $19,500,000 for unpaid permit fees for

2002–2014; $928,220.50 in attorneys’ fees; and $91,097.91

in costs, for a total judgment of $20,519,318.41. Id.

D. Federal District Court Proceedings

In November 2014, FMC filed a complaint in the United

States District Court for the District of Idaho, requesting that

the district court deny enforcement of the judgment of the

Tribal Court of Appeals. The Tribes counterclaimed, seeking

an order enforcing the judgment.
26 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

The district court granted the Tribes’ motion to enforce

the judgment. The court concluded that the Tribes had

jurisdiction over FMC under both Montana exceptions. The

district court rejected FMC’s due process challenge based on

the alleged bias of Judges Gabourie and Pearson on 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 relevant part, independently reached the same

conclusions.

The district court enforced the judgment in its entirety

under the first Montana exception. However, the court

denied comity under the second Montana exception on the

ground that there was insufficient nexus between the

$1.5 million annual permit fee and the costs of tribal

programs required to mitigate the threat from the storage of

FMC’s hazardous waste on the Reservation. The court

concluded that the second Montana exception was therefore

not a ground on which the judgment 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 district court erred in

finding that the judgment was not enforceable under the

second Montana exception.

II. Appellate Jurisdiction and Standard of Review

We have appellate jurisdiction under 28 U.S.C. § 1291.

“We have . . . recognized that because tribal courts are

competent law-applying bodies, the tribal court’s

determination of its own jurisdiction is entitled to ‘some
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 27

deference.’” Water Wheel Camp Recreational Area, Inc. v.

LaRance, 642 F.3d 802, 808 (9th Cir. 2011) (quoting FMC v.

Shoshone-Bannock Tribes, 905 F.2d 1311, 1313 (9th Cir.

1990)). “As we consider questions of tribal jurisdiction, we

are mindful of ‘the federal policy of deference to tribal

courts’ and that ‘[t]he federal policy of promoting tribal selfgovernment encompasses the development of the entire tribal

court system, including appellate courts.’” Id. at 808 (quoting

Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16–17 (1987));

see also United States v. Wheeler, 435 U.S. 313, 332 (1978)

(recognizing that “tribal courts are important mechanisms for

protecting significant tribal interests”).

We review de novo tribal courts’ legal rulings on tribal

jurisdiction, and we review for clear error tribal courts’

factual findings underlying their jurisdictional rulings. Big

Horn Cty. Elec. Coop., Inc. v. Adams, 219 F.3d 944, 949 (9th

Cir. 2000); AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d

899, 904 (9th Cir. 2002).

We review de novo the district court’s summary judgment

decision on the due process claim. Big Horn Cty., 219 F.3d

at 949.

III. Discussion

The core question in this appeal is whether we should

recognize and enforce the Shoshone-Bannock Tribal Court of

Appeals’ final judgment holding FMC liable for an annual

use permit fee of $1.5 million.

“As a general rule, federal courts must recognize and

enforce tribal court judgments under principles of comity.” 

AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d at 903 (citing
28 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir. 1997)). 

In some circumstances, however, we will not recognize and

enforce a judgment. Id. First, we will not recognize and

enforce a judgment if the tribal court did not have both

personal and subject matter jurisdiction. Id. Second, we will

not enforce a judgment if the tribal court denied due process

to the losing party. Id. Further, “[u]nder limited

circumstances, . . . [we] may refuse to recognize or enforce a

tribal judgment on equitable grounds as an exercise of

discretion.” Id.

FMC argues we should not enforce the judgment of the

Shoshone-Bannock Tribal Court of Appeals for two reasons. 

First, FMC argues the Tribes lacked subject matter

jurisdiction over FMC. Second, FMC argues it was denied

due process of law because two judges of the Tribal Court of

Appeals were biased against it.

Unless we hold that the Shoshone-Bannock Tribal Court

of Appeals lacked subject matter jurisdiction or denied FMC

due process, we “must enforce the tribal court judgment

without reconsidering issues decided by the tribal court.” Id.

at 903–04 (citing Iowa Mut. Ins. Co., 480 U.S. at 19 (“Unless

a federal court determines that the Tribal Court lacked

jurisdiction . . . proper deference to the tribal court system

precludes relitigation of issues . . . resolved in the Tribal

Courts.”)). We “may not readjudicate questions—whether of

federal, state or tribal law—already resolved in tribal court

absent a finding that the tribal court lacked jurisdiction or that

its judgment be denied comity for some other valid reason.” 

Id. at 904.

We address each of FMC’s arguments in turn. We hold

that the Tribes had regulatory and adjudicatory jurisdiction
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 29

under both Montana exceptions to impose and enforce the

permit fees. We further hold that there was no due process

violation. Finally, we hold that the final judgment of the

Shoshone-Bannock Tribal Court of Appeals is entitled to

recognition and enforcement under principles of comity under

both Montana exceptions.

A. Subject Matter Jurisdiction

We first determine whether the Shoshone-Bannock Tribal

Court of Appeals had subject matter jurisdiction over the

Tribes’ claims against FMC. To make that determination, we

must answer two related questions. First, did the Tribes have

regulatory jurisdiction to impose the permit fees? Second,

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 authority over a defendant, a

tribal court must have [] subject matter jurisdiction—

consisting of regulatory and adjudicative jurisdiction . . . .”);

see also Knighton v. Cedarville Rancheria of N. Paiute

Indians, 922 F.3d 892, 899 (9th Cir. 2019) (quoting the

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 nonmember conduct on nonIndian-owned fee land within the boundaries of the

Reservation. We therefore apply the Supreme Court’s

framework set forth in Montana v. United States, 450 U.S.

544 (1981), to determine whether the Tribes had regulatory

jurisdiction to impose permit fees on FMC. See Window

Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 898 (9th Cir.

2017), as amended (Aug. 3, 2017) (explaining that “[o]ur
30 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

caselaw has long recognized two distinct frameworks for

determining whether a tribe has jurisdiction over a case

involving a non-tribal-member defendant: (1) the right to

exclude, which generally applies to nonmember conduct on

tribal land; and (2) the exceptions articulated in Montana v.

United States, 450 U.S. 544 (1981), which generally apply to

nonmember conduct on non-tribal land.” (emphasis added)).

In Montana, the Supreme Court held that there are three

bases for tribal regulatory jurisdiction over nonmember

activities on non-Indian fee land within the boundaries of a

reservation—the so-called Montana exceptions. 450 U.S.

at 565–66 (“Indian tribes retain inherent sovereign power to

exercise some forms of civil jurisdiction over non-Indians on

their reservations, even on non-Indian fee lands.”); Bugenig

v. Hoopa Valley Tribe, 266 F.3d 1201, 1209–10 (9th Cir.

2001) (en banc) (discussing the same); see also Iowa Mut.

Ins. Co., 480 U.S. at 18 (“Tribal authority over the activities

of non-Indians on reservation lands is an important part of

tribal sovereignty.”); Attorney’s Process & Investigation

Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d

927, 934–35 (8th Cir. 2010) (briefly discussing some of the

historical scope of tribal sovereignty and changes over time). 

Cf. Worcester v. Georgia, 31 U.S. 515, 557 (1832) (Tribes are

“distinct political communities, having territorial boundaries,

within which their authority is exclusive, and having a right

to all the lands within those boundaries, which is not only

acknowledged, but guarantied by the United States.”).

First, a tribe retains the inherent sovereign authority to

“regulate, through taxation, licensing, or other means, the

activities of nonmembers who enter consensual relationships

with the tribe or its members, through commercial dealing,

contracts, leases or other arrangements.” 450 U.S. at 565. 
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 31

Second, a tribe “retain[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 some direct

effect on the political integrity, the economic security, or the

health or welfare of the tribe.” Id. at 566. Third, a Tribe may

regulate the conduct of nonmembers on non-Indian fee land

when that regulation is expressly authorized by federal statute

or treaty. See Strate, 520 U.S. at 445; Montana v. U.S. EPA,

137 F.3d 1135, 1140 (9th Cir. 1998). There is a presumption

against tribal jurisdiction over nonmember activity on nonIndian fee land. Bugenig, 266 F.3d at 1209–10; see Plains

Commerce Bank v. Long Family Land & Cattle Co., 554 U.S.

316, 330 (2008). The Tribes bear the burden of rebutting that

presumption. Plains Commerce Bank, 554 U.S. at 330.

Only the first two jurisdictional bases are relevant here. 

We examine them in turn.

a. First Montana Exception

The first Montana exception provides that tribes have

jurisdiction to “regulate, through taxation, licensing, or other

means, the activities of nonmembers who enter consensual

relationships with the tribe or its members,” including

consensual relationships “through commercial dealing,

contracts, leases or other arrangements.” Montana, 450 U.S.

at 565–66; see also Strate, 520 U.S. at 446. The Supreme

Court has recognized that permit requirements and permit

fees constitute a form of regulation. See Morris v. Hitchcock,

194 U.S. 384 (1904) (recognizing tribal jurisdiction to require

non-members to obtain permits and pay a permit fee in order

to graze livestock on reservation).
32 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

For purposes of determining whether a consensual

relationship exists, “consent may be established ‘expressly or

by [the nonmember’s] actions.’” Water Wheel, 642 F.3d

at 818 (quoting Plains Commerce Bank, 554 U.S. at 338). 

The test is not subjective. Rather, it is “whether under th[e]

circumstances the non-Indian defendant should have

reasonably anticipated that [its] interactions might ‘trigger’

tribal authority.” Id. at 817–18 (quoting Plains Commerce

Bank, 554 U.S. at 337) (stating also “[t]he Supreme Court has

indicated that tribal jurisdiction depends on what non-Indians

‘reasonably’ should ‘anticipate’ from their dealings with a

tribe or tribal members on a reservation.”).

FMC entered a consensual relationship with the Tribes,

both expressly and through its actions, when it negotiated and

entered into an permit agreement with the Tribes, requiring

annual use permits and an annual $1.5 million permit fee to

store 22 million tons of hazardous waste on the Reservation. 

As the district court noted, FMC then “affirmed its

consensual relationship with the Tribes by signing the

Consent Decree, which required FMC to obtain Tribal

permits.” FMC Corp. v. Tribes, 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 argument that

the Decree should be approved.” Id. The conduct that the

Tribes seek to regulate through the permit fees at issue—the

storage of hazardous waste on the Reservation—arises

directly out of this consensual relationship. See Knighton,

922 F.3d at 904 (“Montana’s consensual relationship

exception requires that ‘the regulation imposed by the Indian

tribe have a nexus to the consensual relationship itself.’”

(quoting Atkinson Trading Co. v. Shirley, 532 U.S. 645, 656

(2001))).
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 33

FMC argues this consensual relationship was “coerced”

because EPA required FMC to obtain relevant permits from

the Tribes in order to obtain a Consent Decree to settle EPA’s

RCRA-based claims against FMC. FMC may indeed have

been “coerced” in the sense that the EPA required it to obtain

tribal permits as a condition for obtaining a Consent Decree. 

However, the “coercion,” if it can be called that, came from

FMC’s strong interest in obtaining a Consent Decree that

would allow it to settle the RCRA suit on favorable terms.

FMC was highly motivated to obtain the Consent Decree

proffered by the EPA. In the words of the district court,

“[T]he Consent Decree allowed FMC to dump the toxic mess

it had created in the EPA’s lap by paying a small fine of

$11.9 million along with a few million dollars in construction

commitments. That was a sweetheart deal and FMC was

desperate to grab it.” FMC Corp. v. Tribes, 2017 WL

4322393 at *13. Faced with a choice between years of

litigation, on the one hand, and a “sweetheart deal” that

required FMC to pay a small fine and obtain tribal permits

whose terms were already known, on the other, FMC chose

to consent to tribal jurisdiction. The district court wrote,

“This was a simple business deal . . . .” Id. at *10. It was

“not the product of illegal duress or coercion.” Id.

We fail to see why a strong interest in obtaining a

particular result is “coercion” that invalidates an agreement

designed to achieve that desired result. Further, to the extent

that there was some kind of “coercion,” it was “coercion” by

the EPA. It was the EPA that insisted on tribal permits as a

condition to agreeing to enter into the Consent Decree. As

the district court observed, the Tribes simply “took advantage

of their bargaining leverage, a long-standing practice in the
34 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

sharp-elbowed corporate world in which FMC does business

every day.” Id.

Moreover, FMC should have reasonably anticipated that

its interactions might “trigger” tribal regulatory authority. 

Water Wheel, 642 F.3d at 818 (quoting Plains Commerce

Bank, 554 U.S. at 338). FMC “is no stranger” to the Tribes’

governance and laws or to the Tribes’ regulatory and

adjudicatory jurisdiction. Knighton, 922 F.3d at 904. FMC

has operated on the Reservation for over 50 years and has had

an extensive relationship with the Tribes for 70 years. That

relationship includes a long history of “commercial

dealing[s], contracts, leases, and other arrangements” with the

Tribes, including mining leases, contracts for the supply of

phosphate shale, agreements recognizing the Tribes’ taxing

power, royalty payments, and employment and permit

agreements. Montana, 450 U.S. at 565–66; see also FMC v.

Shoshone-Bannock Tribes, 905 F.2d at 1312 (9th Cir. 1990)

(discussing FMC’s extensive mining 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 1990, in FMC v. ShoshoneBannock Tribes, we held that the Tribes had regulatory

jurisdiction over FMC’s activities on its fee land within the

Reservation such that the Tribes could require FMC to

comply with the Tribes’ Tribal Employment Rights

Ordinance. 905 F.2d 1311. Enacted by the Tribes in 1980,

the Ordinance required employers on the Reservation,

including non-Indian employers operating on fee land, to give

mandatory preferences in hiring, contracting, and

subcontracting to Indians. Id. at 1312. FMC initially
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 35

objected to application of the Ordinance to its phosphorus

production plant, the same plant at issue here. Id. But there,

as here, “[a]fter negotiations with the Tribes, FMC entered

into an employment agreement based on the TERO in 1981

that resulted in a large increase in the number of Indian

employees at FMC.” Id. at 1312–13.

In 1986, “the Tribes became dissatisfied with FMC’s

compliance with the employment agreement,” and after

attempts to negotiate failed, the Tribes filed suit in Tribal

Court. Id. at 1313. There, as here, FMC argued the Tribes

lacked regulatory and adjudicatory jurisdiction over FMC. 

Id. The Tribal Court held the Tribes had jurisdiction over

FMC and concluded that FMC had violated the Ordinance. 

Id. The Tribal Court of Appeals affirmed. Id. When the

parties could not agree on a compliance plan, the Tribal Court

of Appeals entered its own compliance plan and levied an

annual fee of approximately $100,000 against FMC. Id.

We held that the Tribes had jurisdiction over FMC under

Montana’s first exception. We wrote:

FMC has certainly entered into consensual

relationships with the Tribes in several

instances. Most notable are the wide[-

]ranging mining leases and contracts FMC has

for the supply of phosphate shale to its plant. 

FMC also explicitly recognized the Tribes’

taxing power in one of its mining agreements. 

FMC agreed to royalty payments and had

entered into an agreement with the Tribes

relating specifically to the TERO’s goal of

increased Indian employment and training. 

There is also the underlying fact that its plant
36 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

is within reservation boundaries, although,

significantly, on fee and not on tribal land. In

sum, FMC’s presence on the reservation is

substantial, both physically and in terms of

the money involved.

Id. at 1314.

We therefore conclude that the Tribes had regulatory

jurisdiction under Montana’s first jurisdictional basis to

impose the permit fees based on FMC’s consensual

relationship with the Tribes.

b. Second Montana Exception

Under Montana’s second exception, the Tribes must

demonstrate that FMC’s conduct on its fee lands within the

Reservation “threatens or has some direct effect on the

political integrity, the economic security, or the health or

welfare of the tribe.” Montana, 450 U.S. at 566. Under the

second exception, a tribe “may quite legitimately seek to

protect its members from noxious uses that threaten tribal

welfare or security, or from nonmember conduct on the land

that does the same.” Plains Commerce Bank, 554 U.S.

at 336. Threats to tribal natural resources, including those

that affect tribal cultural and religious interests, constitute

threats to tribal 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 1139, 1141 (“We have previously

recognized that threats to water rights may invoke inherent

tribal authority over non-Indians. A tribe retains the inherent

power to exercise civil authority over the conduct of nonIndians on fee lands within its reservation when that conduct
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 37

threatens or has some direct effect on the health and welfare

of the tribe. This includes conduct that involves the tribe’s

water rights. . . . [D]ue to the mobile nature of pollutants in

surface water it would in practice be very difficult to separate

the effects of water quality impairment on non-Indian fee

land from impairment on the tribal portions of the

reservation: A water system is a unitary resource. The

actions of one user have an immediate and direct effect on

other users.”) (internal quotation marks and citations

omitted).

To establish jurisdiction under Montana’s second

exception, the nonmember’s activities “must do more than

injure the [Tribes].” Plains Commerce Bank, 554 U.S. at 341. 

The activities must “imperil the subsistence or welfare” of the

tribal community. Montana, 450 U.S. at 566; accord Plains

Commerce Bank, 554 U.S. at 341; Evans v. ShoshoneBannock Land Use Policy Comm’n, 736 F.3d 1298, 1306 (9th

Cir. 2013).

Tribal jurisdiction under the second Montana exception

may exist concurrently with federal regulatory jurisdiction. 

See Tribal Court of Appeals, May 2014 Opinion, at 5

(discussing the same). As we have explained previously,

there is “no suggestion” in the Montana case law that

“inherent [tribal] authority exists only when no other

government can act.” Montana v. U.S. EPA, 137 F.3d

at 1141.

We conclude that FMC’s storage of millions of tons of

hazardous waste on the Reservation “threatens or has some

direct effect on the political integrity, the economic security,

or the health or welfare” of the Tribes to the extent that it

“imperil[s] the subsistence or welfare” of the Tribes. 
38 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

Montana, 450 U.S. at 566. We base our conclusion on the

factual findings of the Tribal Court of Appeals, the factual

findings and conclusions of the EPA, expert testimony

presented in the Tribal Court of Appeals, and the record as a

whole. The record contains extensive evidence of toxic,

carcinogenic, and radioactive substances at the FMC site. We

highlight here only two sources of contamination and the

threats they pose to the Tribes: elemental phosphorus in the

ground, and phosphine gas in the air.

i. Elemental Phosphorus in the Ground

Millions of tons of “ignitable-reactive elemental

phosphorus,” “high concentrations of arsenic,” and gamma

radiation contaminate the soil at the FMC site. EPA, 2013

Unilateral Admin. Order for Remedial Design and Remedial

Action, CERCLA No. 10-2013-0116, at 7 (June 10, 2013)

(“2013 UAO”). “The elemental phosphorus contamination

within the FMC OU alone is at a scale unprecedented

anywhere in the United States . . . .” IRODA at 83. As much

as 16,000 tons of elemental phosphorus saturate the ground,

extend in a plume at least 85 feet below ground, and

contaminate approximately 780,000 cubic yards of soil

weighing 1 million tons. IRODA at 21, 78, 83. This

calculated amount of phosphorus does not include elemental

phosphorus-contaminated wastes that currently sit in ponds

on the FMC site, the elemental phosphorus waste that has

migrated or been blown off-site, and the unknown amount of

waste that is contained in buried rail tanker cars that may

corrode and leak. IRODA at 9, 14, 83. The elemental

phosphorus contamination at the FMC site poses a serious

threat to human health, the environment, and the welfare of

the Tribes. In the EPA’s words, elemental phosphorus at the

FMC site exists “in concentrations exceeding 1,000 parts per
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 39

million (ppm)” in the soil and “will present a significant risk

to human health and the environment should exposure occur.” 

IRODA at ii; see also id. at 34 (“[R]isks from exposure to

ignitable elemental phosphorus are severe and highly certain

should direct exposure occur.”).

The EPA concluded that the elemental phosphorus at the

FMC site constitutes a “principal threat waste.” IRODA at ii,

77–78. “Principal threat wastes are those source materials

considered to be highly toxic or highly mobile that generally

cannot be reliably contained or would present a significant

risk to human health or the environment should exposure

occur.” Id. at ii–iii. Elemental phosphorus “is highly toxic

by ingestion, inhalation, and skin absorption”; “may be fatal

at high concentrations; is corrosive to skin and other living

tissue”; “is likely to cause skin burns upon contact”; and is

pyrophoric, meaning it will spontaneously burst into flames

when exposed to the air, producing phosphine and other toxic

gases. Id. at 77–78. Exacerbating the threat, elemental

phosphorus “has physical properties that are unlike most

[contaminants of concern] encountered in environmental

response actions,” requiring “special handling techniques not

only for routine handling but also for emergency response.”

Id. at iii, 77–78; see also id. at 28 (concluding that elemental

phosphorus at the FMC site “could ignite, causing burns and

inhalation hazards from intensely irritating phosphoric acid

aerosols with potential to drift beyond the immediate area.”). 

“The threat of elemental phosphorus was vividly described by

Claudeo Bronco, [a witness before the Tribal Court of

Appeals,] who testified that he [saw] ducks spontaneously

ignite as they took off from FMC’s phosphorus containment

ponds.” Tribal Court of Appeals, May 2014 Opinion, at 6–7.
40 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

The EPA’s CERCLA plan calls for FMC to place

evapotranspiration caps over areas contaminated with

elemental phosphorus. IRODA at 68. However, despite the

EPA’s involvement at the site since 1990 when the EPA first

declared the plant a Superfund Site, many areas of the site,

including the area where the tanker railroad cars are buried,

still had not been capped at the time of the 2014 hearing

before the Tribal Court of Appeals. Further, as the EPA

wrote, capping “does not reduce [the] toxicity, mobility, or

volume of contaminants.” Id. at 60. Even if capped,

phosphorus-contaminated soil will remain on the Reservation

indefinitely and continue to present a threat to Tribal health

and welfare.

ii. Phosphine Gas in the Air

Phosphine gas produced from elemental phosphorus

stored in ponds on FMC’s site poses a constant threat to the

Tribes. Phosphine gas is “very flammable,” “highly

reactive,” and “extremely toxic” to humans. Letter from Kai

Elgethun, Idaho Dep’t of Health and Welfare to Greg Weigel,

EPA Idaho Operations Office, at 2–3 (June 1, 2010) (“Letter

from Idaho Dep’t of Health and Welfare”); EPA, Unilateral

Admin. Order for Removal Action, FMC Idaho LLC,

CERCLA No. 10-2010-0170, at 9 (June 14, 2010) (“2010

UAO”); see also Expert Witness Testimony from Dr. Jerrold

Leikin and Dr. Peter Orris, members of EPA’s Supplemental

Environmental Project 14 for the FMC Site (discussing the

dangers of phosphine gas and the FMC site in particular). 

Phosphine gas is “immediately dangerous to life and health”

at concentrations of 50 parts per million (“ppm”). 2010 UAO

at 9. It burns spontaneously upon contact with air and

explodes at concentrations at or near 20,000 ppm. Id.; see

also Expert Witness Testimony of Dr. Jerrold Leikin
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 41

(describing phosphine as a “knockdown gas,” meaning a few

breaths can render a person unable to walk or talk, and can

result in extreme harm or eventual death). The short-term

upper limit for human exposure is 1 ppm for 15 minutes of

exposure. 2010 UAO at 9.

There are eleven RCRA waste ponds on FMC’s property

that are supervised under the Consent Decree. Nine of those

ponds were capped between 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 evapotranspiration caps on the capped

ponds and are released from the uncapped ponds. Id. 

Although the EPA has ordered FMC to implement measures

to contain the gas, releases continue to occur.

In 2006 and 2010, for example, the EPA entered

Unilateral Administrative Orders (“UAO”) responding to

phosphine gas releases from capped and uncapped RCRA

ponds. See EPA, Unilateral Admin. Order for Removal

Actions,FMC Idaho LLC, CERCLA No. 10-2007-0051 (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

around the RCRA ponds were high enough that workers in

the area either had to delay work or leave the area for their

safety).

The EPA reported in its 2006 UAO that phosphine gas

releases had been detected at RCRA Pond 16S. In June 2006,

“intermittent emissions of smoke” from two temperature

monitoring points (“TMP”) had been observed at the pond. 

2006 UAO at 10. Subsequently, “[v]isible air emissions from

Pond 16S [were] observed on a number of occasions [after]

June 2006, including by Shoshone-Bannock Tribal staff on
42 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

September 6, 2006 and September 18, 2006.” Id. FMC had

reported to the EPA that phosphine gas was collecting in

TMP well casings at Pond 16S, and was “likely accumulating

to the phosphine auto-ignition concentration (20,000 parts per

million) inside the temperature well casings or vents.” Id. 

The EPA concluded that “[t]he conditions at the Site

constitute[d] an imminent and substantial endangerment to

public health or welfare or the environment within the

meaning of Section 106(a) of CERCLA, 42 U.S.C.

§ 9606(a).” Id. at 13–14 (stating also that the conditions

“constitute a threat to public health or welfare or the

environment”). The EPA issued a “time critical Action

Memorandumon December 13, 2006 for Pond 16S to remove

and treat phosphine and other gases at levels of concern . . . .”

 Id. at 12–13.

Dr. Peter Orris testified before the Tribal Court of

Appeals that he “absolutely” agreed with the EPA’s findings

and conclusions in the 2006 UAO. He testified that the

phosphine gas was “both acutely and chronically dangerous

to people in the area or downstream, if you will, or

downwind.” “Phosphine gas [is a] close cousin to the

phosgene gas used in World War I . . . that gassed all the

soldiers, so 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 TMPs and in ambient air

at a number of the RCRA Ponds.” 2010 UAO at 9. In late

2009, FMC detected phosphine levels above 1 ppmnear Pond

15S, triggering alarms downwind and requiring evacuations

on November 2, 23, and 27, and on December 22. Id. at 11. 

In December 2009 to April 2010, FMC detected

concentrations of phosphine gas as high as 23,000 ppm inside
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 43

a lift station associated with Pond 15S. Id. Daily monitoring

from February to April 2010 measured phosphine gas in

“ambient air,” at breathing zone height, ranging from 0 to at

least 20 ppm. Id. at 12. The actual concentrations may have

been much higher. The EPA reported, “[O]n numerous

occasions the monitors [] ‘pegged out’ at 20 ppm,” the upper

detection limit for FMC’s monitors, “indicating some

unknown concentration higher than 20 ppm.” Id. Another

phosphine survey on April 30, 2010, “provided phosphine

readings that averaged 300 ppm” in another area of the pond. 

Id.

FMC first reported the issues with Pond 15S to the EPA

in a letter dated April 14, 2010. Id. at 11. In response to an

EPA request for information, FMC sent the EPA monitoring

data from all the RCRA ponds on April 26, 2010. Id. at 12. 

The data indicated that phosphine concentrations in the

ambient air around two more ponds—one capped and one

uncapped—were at or near the upper detection limit for

FMC’s monitors. 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 release of its

2010 UAO, Dr. Kai Elgethun of the Idaho Department of

Health and Welfare wrote: “We 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

proximity of Pond 15S . . . .” Letter from Idaho Dep’t of

Health and Welfare at 1. Pond 15S is approximately

400 meters south of a road and 600 meters south of an

interstate highway that crosses the Reservation. Id. at 3.

The EPA wrote in the 2010 UAO: “Action is necessary to

protect receptors from inhalation of phosphine at RCRA
44 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

Ponds, and to minimize the risk of fire and explosion from

high concentrations of phosphine gas at the RCRA Ponds.” 

2010 UAO at 14. “Receptors,” in the jargon of the EPA, are

individuals who may be exposed to phosphine gas. The EPA

wrote that “receptors” included individuals “at or near the

facility boundaries,” such as railroad and power company

workers, bicyclists and pedestrians on “old Highway 30,” and

“members of the Shoshone-Bannock Tribes.” Id. at 13. The

EPA concluded in 2010, as it had in 2006, that the “[h]igh

concentrations of phosphine accumulating within the [FMC]

RCRA Ponds and being released” “constitute an imminent

and substantial endangerment to public health or welfare or

the environment within the meaning of Section 106(a) of

CERCLA, 42 U.S.C. § 9606(a).” Id. at 13–15. The EPA

issued a “time critical removal Action Memorandum on June

11, 2010, for Ponds 8E, 15S and 17 and the other RCRA

Ponds, requiring air monitoring and action to remove and

treat phosphine gas . . . .” Id. at 13.

David Reisman, a former EPA official who worked at the

EPA for thirty-six years, including several years at the FMC

site, testified before the Tribal Court of Appeals that the

threat of phosphine gas being released from the FMC

site—both onsite and offsite—is “always there.” Reisman

testified that when he visited the FMC site and walked on the

caps on the RCRA ponds he observed visually that “they

were not well maintained.” He testified further, “I think the

data bears out that there is moisture and air getting under the

cap, and mixing with the waste stream in one fashion or

another.” Reisman noted that some phosphine gas is already

escaping because of the nature of the evapotranspiration cap. 

He testified that at a landfill site near Las Vegas, repeated

downpours of rain had caused part of an evapotranspiration

cap to slide off the landfill, exposing the waste. If the caps at
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 45

the FMC site were to similarly crack or slide off, Reisman

testified, massive clouds of phosphine gas at lethal exposure

levels would be released.

Reisman testified that proper monitoring to detect releases

of phosphine gas was not being done at the FMC site. 

According to Reisman, monitoring remained “a big question

mark” under the 2012 IRODA. See also Testimony of Rob

Hartman, Vice President of FMC Idaho (discussing how a

monitoring plan for phosphine gas “has not been developed”). 

Reisman testified that FMC does not have an early warning

system in place, stating that he “hope[d] that all parties would

look into some early warning system in case some of the

catastrophic events would occur.” Another expert witness

described the monitoring at the FMC site as “completely

inadequate.”

The record establishes that FMC’s RCRA ponds on the

Reservation continue to generate lethal amounts of phosphine

gas that accumulate beneath the pond covers. As the district

court wrote, this phosphine gas “pose[s] a constant and

deadly threat to the Tribes” and “a real risk of catastrophic

consequences should containment fail.” FMC Corp. v.

Tribes, 2017 WL 4322393 at *11.

iii. FMC’s Arguments

FMC makes two arguments in its brief against jurisdiction

under the second Montana exception. Both arguments fail.

First, FMC argues that the hazardous waste on its site is

contained, is “actively monitored by FMC and EPA,” and

poses little danger to the Tribes. FMC writes, “The record

does not remotely support jurisdiction under the second
46 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

Montana exception.” FMC’s argument fails to take into

account what is actually in the record.

The hazardous waste at the FMC site constitutes a serious

and continuous threat. The district court summarized:

[T]he EPA has taken substantial steps to

contain the toxic waste and prevent harm. But

the threat remains. . . . Because the EPA

intends to leave the waste on the site

indefinitely, and because the waste’s toxicity

has such a long life—decades if not

longer—there is a real risk that no matter how

well its containment system is designed, the

system may fail. . . . EPA reports demonstrate

that the waste sites are not reservoirs of

passive liquid that can be contained with a

simple dam. Instead, these sites are

generating lethal gases that accumulate under

pressure beneath the pond covers. In other

words, they pose a constant and deadly threat

to the Tribes, a real risk of catastrophic

consequences should containment fail. And

despite the best efforts of the EPA, there have

releases of these toxic gases. . . . This

dangerous threat can only be contained, not

removed or treated. . . . It is so toxic that there

is no safe way to remove it, ensuring that it

will remain on the Reservation for decades.

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

Second, FMC argues that our decision in Evans v.

Shoshone-Bannock Land Use Policy Comm’n, 736 F.3d 1298
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 47

(9th Cir. 2013), compels the conclusion that the Tribes lack

jurisdiction. Evans is light years away from the case before

us. In Evans, we held that the Tribes’ Land Use Policy

Commission did not have jurisdiction under the second

Montana exception to require a nonmember to obtain tribal

permits for the construction of a single-family home. We

held that the Tribes had not established that the construction

of one single-family home on fee land in an area of the

Reservation that already “contain[ed] many residential

properties owned and inhabited by nonmembers”—unlike the

area in Brendale v. Confederated Tribes & Bands of Yakima

Indian Nation, 492 U.S. 408 (1989), which was closed to the

general public—threatened or had some direct effect on the

political integrity, economic security, or the health or welfare

of the Tribes. Id. at 1303–06. In stark contrast to Evans, the

threats from the FMC site, as Dr. Orris testified, “are not

minimal annoyances. They are the threat of catastrophic

health reactions, including death.”

iv. Nexus

The district court held that due to the extensive

contamination at the FMC site, the Tribes had established

jurisdiction under the second Montana exception. However,

as a matter of comity, the court refused to enforce the

judgment of the Tribal Court of Appeals under the second

exception. In the view of the court, the Tribes had failed to

sufficiently explain the connection between the $1.5 million

annual permit fee and the threat posed by the hazardous

waste. Citing Wilson v. Marchington, 127 F.3d 805 (9th Cir.

1997), the court wrote:

Having jurisdiction under the second Montana

exception, the Tribes are authorized to assess
48 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

a permit fee that has some nexus to the costs

of supplementing the EPA’s program to fully

protect the health and safety of Tribal

members. Yet the Tribes have never

explained why an annual fee of $1.5 million is

necessary to provide that supplemental

protection.

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

The district court was mistaken in holding that the Tribes

had jurisdiction under the second Montana exception and, at

the same time, holding that the Tribal Court of Appeals’

judgment was not entitled to comity. The nexus question is

part of the jurisdictional question. Once jurisdiction is

established, lack of nexus is not a ground for denying comity

under Marchington.

We take it as a given that there must be some nexus

between a basis for jurisdiction under Montana and a tribal

action taken in the exercise of that jurisdiction. For example,

if the Tribes had insisted under the second Montana

exception that FMC disinvest from its businesses in China,

such insistence would have been an unreasonable exercise of

jurisdiction. However, there is nothing in Montana requiring

that nexus be narrowly defined. There is nothing, for

example, requiring the Tribes to show that the $1.5 million

annual use permit fee be spent on supplemental measures,

beyond those now being taken by the EPA, to protect against

hazards posed by FMC’s hazardous waste. There is evidence

in the record suggesting that the Tribes have spent

approximately $1.5 million annually on measures to monitor

and mitigate the dangers posed by FMC’s hazardous waste,

and indeed that the Tribes might spend more if funds were
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 49

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

nexus.

A more-than-sufficient nexus may be shown by

comparing fees charged on the open market for hazardous

waste storage, on the one hand, to the $1.5 million annual fee

charged by the Tribes, on the other. FMC’s own evidence in

the Tribal Court of Appeals showed that as of 1995,

commercial hazardous waste disposal facilities charged

between $50 and $250 per ton for bulk disposal (the type of

materials typically disposed of at FMC’s facility). Given the

extreme danger posed by FMC’s hazardous waste, it is an

open question whether anyone could be persuaded to accept

its waste at any price. But assuming that someone would be

willing to accept FMC’s hazardous waste, and using a

midrange fee of $150 per ton, the one-time fee for disposing

of FMC’s 22 million tons of hazardous waste would be

$3.3 billion. Compared to $3.3 billion, an annual fee of

$1.5 million is an extraordinary bargain.

Although we conclude that the Tribes can establish nexus

in this case by showing that they charge less than the open

market fee for comparable activity, we do not mean thereby

to suggest that a tribe in some circumstances might not be

able to charge substantially more than an open market fee, or

might not be able to forbid waste storage or other activities

entirely. We need not hypothesize cases not before us. It is

enough for current purposes to show that there is a morethan-sufficient nexus between the storage of FMC’s highly

dangerous—potentially catastrophically dangerous—waste

and the $1.5 million annual use permit fee to warrant the

assessment of that fee under Montana’s second exception.
50 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

2. Adjudicatory Jurisdiction

A tribe’s adjudicatory jurisdiction over nonmembers may

not exceed its regulatory jurisdiction. Strate, 520 U.S. at 453;

Water Wheel, 642 F.3d at 814 (noting that the Supreme Court

has “articulated the general rule that a tribe’s adjudicative

jurisdiction may not exceed its regulatory jurisdiction”). 

However, the Supreme Court has never decided whether a

Tribe’s adjudicatory jurisdiction is necessarily as extensive as

its regulatory jurisdiction. See Water Wheel, 642 F.3d at 816. 

Where as here, we hold that the Tribes had regulatory

jurisdiction, we are thus presented with the question of

whether they also had adjudicatory jurisdiction.

The Court has held that “where tribes possess authority to

regulate the activities of nonmembers, ‘civil jurisdiction over

disputes arising out of such activities presumptively lies in

the tribal courts.’” Strate, 520 U.S. at 453 (citation omitted);

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

over the activities of non-Indians on reservation lands is an

important part of tribal sovereignty. Civil jurisdiction over

such activities presumptively lies in the tribal courts unless

affirmatively limited by a specific treaty provision or federal

statute.” (internal citations omitted)); Knighton, 922 F.3d

at 906 (discussing the same); Water Wheel, 642 F.3d at 814

(discussing the same). In two recent cases—both involving

nonmember 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 both cases, we

based our holding on the existence of regulatory jurisdiction,

the nature of the tribal sovereign interests, long-standing

principles of Indian law, and congressional interest in tribal

self-government. Based on those same factors, we conclude

that the Shoshone-Bannock Tribal Court of Appeals had
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 51

adjudicatory jurisdiction over the Tribes’ claims in this case.

See Knighton, 922 F.3d at 907 (concluding the same); Water

Wheel, 642 F.3d at 816 (concluding the same). As we stated

in Water Wheel, “Any other conclusion would impermissibly

interfere with the tribe’s inherent sovereignty, contradict

long-standing principles the Supreme Court has repeatedly

recognized, and conflict with Congress’s interest in

promoting tribal self-government.” 642 F.3d at 816.

B. Due Process

We held in Wilson v. Marchington that a federal court

must “reject a tribal judgment if the defendant was not

afforded due process of law.” 127 F.3d at 811. “Due

process, as that term is employed in comity, . . . [requires]

that there has been opportunity for a full and fair trial before

an impartial tribunal that conducts the trial upon regular

proceedings after proper service or voluntary appearance of

the defendant, and that there is no showing of prejudice in the

tribal court or in the system of governing laws.” Id. Comity,

however, “does not require that a tribe utilize judicial

procedures identical to those used in the United States

Courts.” Id. We must “be careful to respect tribal

jurisprudence” as well as tribes’ customs and traditions. Id. 

“Extending comity to tribal judgments is not an invitation for

[us] to exercise unnecessary judicial paternalism in

derogation of tribal self-governance.” Id. “However, the

tribal court proceedings must afford the defendant the basic

tenets of due process or the judgment will not be recognized

by the United States.” Id. FMC argues it was denied due

process. We disagree.

FMC’s primary argument is that two judges on the Tribal

Court of Appeals—Judges Gabourie and Pearson—were not
52 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

impartial. In support of its argument, FMC cites the judges’

remarks at the conference sponsored by the University of

Idaho College of Law. FMC’s argument fails for two

reasons.

First, Judges Gabourie and Pearson did not make any

statements at the conference indicating bias against FMC. At

several points in their remarks, both judges emphasized the

importance of impartiality. Transcript of Tribal Courts:

Jurisdiction and Best Practices (“Transcript”) at 9 and 19

(stating “every court has—should be impartial”; “a good

opinion comes [from] both sides, both parties. Because both

parties rely on a good opinion, strong opinion.”; you “need to

make sure that you do the job right”). Although Judges

Gabourie and Pearson criticized various Supreme Court

opinions, including Montana, disagreement with an opinion

of the Supreme Court 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

themselves with some frequency. See, e.g., Republican Party

of Minn. v. White, 536 U.S. 765, 779 (2002) (“[J]udges often

state their views on disputed legal issues outside the context

of adjudication—in classes that they conduct, and in books

and speeches.”); In re Complaint of Judicial Misconduct,

632 F.3d 1289, 1289 (9th Cir. 2011) (“The Code of Conduct

encourages judges to ‘speak, write, lecture, teach, and

participate in other activities concerning the law, the legal

system, and the administration of justice.’ Engaging in such

law-related activities—including speeches that comment on

current events and legal developments—is permitted not only

because judges are citizens, but because they are particularly

knowledgeable on such topics.” (internal citations omitted));

In re Charges of Judicial Misconduct, 769 F.3d 762, 785

(D.C. Cir. 2014) (“[C]riticizing the [Supreme] Court does not
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 53

constitute judicial misconduct. . . . It would be all but

impossible for a judge to urge changes in the course of the

law, or even to comment on substantive legal issues, without

being able to reference and criticize decisions of the Supreme

Court. Not surprisingly, then, there is a long tradition of

lower court judges criticizing the Court on issues of

constitutional law [and other areas].”).

Judge Pearson did mention at one point that she had a

“big case” that she believed was “going to go up,” and that

she was saying prayers, reading cases, and trying to do the

history. However, she said nothing about the merits of the

case. Cf. In re Charges of Judicial Misconduct, 769 F.3d

at 787–88 (“[N]otwithstanding the general prohibition on

commenting on the merits of pending or impending matters,

the Code contains an exception for offering such comments

in the context of ‘scholarly presentations made for purposes

of legal education.’” (citing Canon 3A(6) of the JudicialConduct Rules)).

Second, to the degree Judges Gabourie and Pearson’s

remarks may be thought to have indicated bias against FMC,

a reconstituted panel of judges considered the prior rulings of

the Tribal Court of Appeals. The reconstituted panel revised

one aspect of the court’s prior decision and affirmed the

others. A differently reconstituted panel then handled all

proceedings going forward, including the hearing on

jurisdiction under Montana’s second exception. The actions

of the reconstituted panels eliminated any possible due

process concerns arising from the remarks of Judges

Gabourie and Pearson, and from their participation in earlier

decisions of the Tribal Court of Appeals.
54 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

FMC makes other due process arguments, including that

the Fort Hall Business Council improperly closed the record;

that the Tribal Court of Appeals improperly rejected evidence

from FMC as untimely; that the Tribal Court of Appeals,

rather than the trial court, held an evidentiary hearing; and

that the tribal courts are not independent from the Fort Hall

Business Council. FMC has either waived these arguments

or they are self-evidently meritless.

FMC’s due process arguments are based in part on an

underlying argument that, in FMC’s words, tribal courts

present “inherent risks . . . for denying nonmembers” due

process protections. The Supreme Court, our circuit, and our

sister circuits have repeatedly rejected that and other similar

arguments. See, e.g., Nat’l Farmers Union Ins. Cos. v. Crow

Tribe of Indians, 471 U.S. 845, 855–57 (1985) (requiring

nonmembers to exhaust tribal court remedies and stating that

exhaustion will “provide other courts with the benefit of

[tribal court] expertise”); Norton v. Ute Indian Tribe of the

Uintah & Ouray Reservation, 862 F.3d 1236, 1249–50 (10th

Cir. 2017) (“We also reject the officers’ arguments 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 to baseless ‘attacks’ on the

competence and fairness of the Ute Tribal Court. The

Supreme Court has already explained that such arguments are

contrary to federal policy . . . . The Court has also

‘repeatedly’ recognized tribal courts ‘as appropriate forums

for the exclusive adjudication of disputes affecting important

personal and property interests of both 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 important mechanisms for protecting

significant tribal interests.”))).
FMC CORP. V. SHOSHONE-BANNOCK TRIBES 55

The Tenth Circuit recently wrote, “Although it is true that

the Bill of Rights does not itself constrain tribal court

proceedings, see Talton v. Mayes, 163 U.S. 376, 382–85

(1896), this does not leave the rights of nonmembers

unprotected in tribal courts.” Norton, 862 F.3d at 1249. “The

Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301–04,

expressly provides that no tribe may ‘deny to any person

within its jurisdiction the equal protection of its laws or

deprive any person of liberty or property without due process

of law.’” Id. at 1249–50 (citing 25 U.S.C. § 1302(a)(8)); see

also Iowa Mut. Ins. Co., 480 U.S. at 19 (noting that ICRA

“provides non-Indians with various protections against unfair

treatment in the tribal courts”). “Making good on these due

process guarantees, nearly five decades of tribal cases

applying ICRA show that tribal courts protect the rights of

both member and nonmember litigants in much the same way

as do federal and state courts.” Norton, 862 F.3d at 1250. 

“[T]ribal courts often provide litigants with due process that

‘exceed[s] the protections offered by state and federal

courts.’” Id. (second alteration in original) (citing Matthew

L.M. Fletcher, American Indian Tribal Law 325 (2011)).

“[E]mpirical studies demonstrate that tribal courts are

even-handed in dispensing justice to nonmembers.” Id.; see,

e.g., Bethany R. Berger, Justice and the Outsider:

Jurisdiction Over Nonmembers in Tribal Justice Systems,

37 Ariz. St. L.J. 1047, 1047, 1051 (2005) (“Navajo appellate

courts are remarkably balanced in hearing cases involving

outsiders. . . . The court is both numerically balanced in its

decisions regarding nonmembers . . . and qualitatively

balanced, even in areas . . . that might seem particularly prone

to bias. A less comprehensive review of decisions from other

tribal court systems reveals a similar effort to decide issues

fairly, even where it requires ruling against tribal members or
56 FMC CORP. V. SHOSHONE-BANNOCK TRIBES

the tribe itself.”); Mark D. Rosen, Multiple Authoritative

Interpreters of Quasi-Constitutional Federal Law: Of Tribal

Courts and the Indian Civil Rights Act, 69 Fordham L. Rev.

479, 578 (2000) (concluding from a study of twelve years of

decisions from approximately twenty-five tribal courts that

“tribal courts have [not] succumbed to the temptation to favor

the insider at the expense of outsiders”).

Our own experience in reviewing tribal court decisions is

consistent with the findings of these studies. Tribal courts,

like all courts (including our own), make mistakes. But,

contrary to the contention of FMC, tribal courts do not treat

nonmembers unfairly.

C. Comity

Because we hold that the Tribes had regulatory and

adjudicatory jurisdiction under both Montana bases, and that

FMC was not denied due process, we recognize and enforce

the Tribal Court of Appeals’ judgments under principles of

comity. See AT&T Corp. v. Coeur d’Alene Tribe, 295 F.3d

at 903. The judgment of the Tribal Court of Appeals is

enforceable under both the first and second Montana

exceptions. See Wilson v. Marchington, 127 F.3d at 810.

Conclusion

We hold that the Tribes had regulatory and adjudicatory

jurisdiction under both Montana exceptions, and that the

Tribal Court of Appeals did not violate FMC’s right to due

process. We hold that the judgment of the Tribal Court of

Appeals is enforceable under principles of comity.

AFFIRMED.