Petition for Writ of Certiorari — FMC Corporation, Petitioner v. Shoshone-Bannock Tribes

Supreme Court briefMar 16, 2020

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No. _______

In the

Supreme Court of the United States

FMC CORPORATION,

Petitioner,

SHOSHONE-BANNOCK TRIBES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GREGORY G. GARRE

Counsel of Record

ELANA NIGHTINGALE DAWSON

SAMIR DEGER-SEN

GENEVIEVE P. HOFFMAN

ALLISON HERZOG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioner

QUESTIONS PRESENTED

This Court has long held that tribal efforts “to

regulate nonmembers, especially on non-Indian fee

land, are presumptively invalid.” Plains Commerce

Bank v. Long Family Land & Cattle Co., 554 U.S. 316,

330 (2008) (citation omitted). This rule is subject to

two exceptions, “known as the Montana exceptions.”

Id. But the Court has repeatedly stressed that these

exceptions are “limited” and cannot be construed so as

to “swallow the rule” against tribal jurisdiction over

nonmembers. Id. (citation omitted). The Court has

also emphasized that, even when a Montana

exception is met, a tribe’s regulation of nonmembers

still “must stem from the tribe’s inherent authority to

set conditions on entry, preserve tribal selfgovernment, or control internal relations.” Id. at 337.

The Ninth Circuit, which is home to some 400

Indian tribes, has repeatedly resisted these limits,

leading one judge to observe that the court has

“flip[ped] Montana’s general rule on its head.”

Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d

894, 907, 916 (9th Cir. 2017) (Christen, J., dissenting).

Here, in direct conflict with the decisions of this Court

as well as those of the Seventh and Eighth Circuits,

the Ninth Circuit overhauled Montana’s carefully

tailored framework and turned it into an

unprecedented source of tribal jurisdiction over

nonmembers who have no say in tribal government.

The questions presented are:

1. Whether the Ninth Circuit correctly holds that

tribal jurisdiction over nonmembers is established

whenever a Montana exception is met, or whether, as

the Seventh and Eighth Circuits have held, a court

must also determine that the exercise of such

jurisdiction stems from the tribe’s inherent authority

to set conditions on entry, preserve tribal selfgovernment, or control internal relations.

2. Whether the Ninth Circuit has construed the

Montana exceptions to swallow the general rule that

tribes lack jurisdiction over nonmembers.

iii

RULE 29.6 STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court,

petitioner FMC Corporation hereby states that it is a

publicly traded company, it is not owned by a parent

company, and no publicly held corporation owns 10%

or more of its stock.

LIST OF RELATED PROCEEDINGS

Pursuant to Supreme Court Rule 14.1(b)(iii),

petitioner states that there are no proceedings

directly related to this case in this Court.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

RULE 29.6 STATEMENT......................................... iii

LIST OF RELATED PROCEEDINGS ..................... iv

TABLE OF AUTHORITIES ..................................... ix

OPINIONS AND ORDERS BELOW ......................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED................................... 1

INTRODUCTION ...................................................... 1

STATEMENT OF THE CASE ................................... 4

A. FMC’s Fee Land And EPA’s Containment

Plan For Waste On The Site ........................... 4

B. The

Tribes’

Increasing

Regulatory

Demands And Closure Of FMC’s Plant .......... 7

C. This Dispute And Tribal Court Process

Resulting In The Judgment At Issue ............. 8

D. Federal Court Decisions Below ..................... 10

REASONS FOR GRANTING THE WRIT............... 12

I. THE

NINTH

CIRCUIT’S

DECISION

CONFLICTS WITH THE DECISIONS OF

THIS COURT AND OTHER CIRCUITS ........... 12

A. The Ninth Circuit Refuses To Recognize A

Fundamental Limitation On Tribal

Sovereignty Over Nonmembers .................... 13

TABLE OF CONTENTS—Continued

Page

B. The Ninth Circuit Vastly Expanded The

Scope Of Montana’s First Exception ............ 20

C. The Ninth Circuit Vastly Expanded The

Scope Of Montana’s Second Exception ......... 23

D. All Told, The Ninth Circuit’s Revamped

Montana Framework “Swallows The Rule”

That

Tribes

Presumptively

Lack

Jurisdiction Over Nonmembers .................... 28

II. THIS CASE PRESENTS A RECURRING

ISSUE

UNQUESTIONABLE

IMPORTANCE AND WARRANTS THIS

COURT’S INTERVENTION HERE................... 29

A. This Court Has Repeatedly Recognized

The Need To Enforce The Limits On Tribal

Jurisdiction Over Nonmembers .................... 29

B. This Case Presents An Ideal Vehicle To

Clarify And Reinforce The Limits Of

Tribal Jurisdiction Over Nonmembers ......... 33

CONCLUSION ......................................................... 35

APPENDIX

Opinion of the United States Court of Appeals

for the Ninth Circuit, FMC Corp. v.

Shoshone-Bannock Tribes, 942 F.3d 916

(9th Cir. 2019) .....................................................1a

vii

TABLE OF CONTENTS—Continued

Page

Memorandum Decision and Order of the

United

States

District

Court

for

the District of Idaho, FMC Corp. v.

Shoshone-Bannock Tribes, No. 4:14-CV489-BLW, 2017 WL 4322393 (D. Idaho

Sept. 28, 2017) ..................................................56a

Order of the United States Court of Appeals for

the Ninth Circuit Denying Petition for

Rehearing En Banc, FMC Corp. v.

Shoshone-Bannock Tribes, Nos. 17-35840,

17-35865 (9th Cir. Jan. 13, 2020).....................90a

Opinion, Order, Findings of Fact and

Conclusions of Law, Shoshone-Bannock

Tribes Land Use Department and Fort Hall

Business Council v. FMC Corp., Nos. C-060069, C-07-0017, C-07-0035 (Tribal Ct.

App. filed Apr. 30, 2014), ER63-78 ..................92a

Amended Findings of Fact, Conclusions of

Law, Opinion and Order Re Attorney

Fees and Costs, Nunc Pro Tunc, ShoshoneBannock Tribes Land Use Department

and Fort Hall Business Council v. FMC

Corp., Nos. C-06-0069, C-07-0017, C-070035 (Tribal Ct. App. filed Feb. 5, 2013),

ER119-37 .........................................................111a

viii

TABLE OF CONTENTS—Continued

Page

Amended Nunc Pro Tunc Findings of Fact,

Conclusions of Law, Opinion and Order,

FMC Corp. v. Shoshone-Bannock Tribes

Land Use Department and Fort Hall

Business Council, Nos. C-06-0069, C-070017, C-07-0035 (Tribal Ct. App. filed June

14, 2012), ER158-224......................................136a

Opinion, FMC Corp. v. Shoshone-Bannock

Tribes’ Land Use Department and Fort

Hall Business Council and Shoshone

Bannock Tribes’ Land Use Policy

Commission, Nos. C-06-0069, C-07-0017,

C-07-0035 (Tribal Ct. May 21, 2008),

ER293-311 .......................................................225a

TABLE OF AUTHORITIES

Page(s)

CASES

Atkinson Trading Co. v. Shirley,

532 U.S. 645 (2001) .................................. 22, 23, 28

Belcourt Public School District v. Davis,

786 F.3d 653 (8th Cir. 2015)................................27

Dolgencorp, Inc. v. Mississippi Band of

Choctaw Indians,

746 F.3d 167 (5th Cir. 2014), aff’d by an

equally divided court sub nom. Dollar

General Corp. v. Mississippi Band of

Choctaw Indians, 136 S. Ct. 2159 (2016)............19

Dolgencorp, Inc. v. Mississippi Band of

Choctaw Indians,

746 F.3d 588 (5th Cir. 2014)................................19

Dollar General Corp. v. Mississippi Band of

Choctaw Indians,

136 S. Ct. 2159 (2016)......................................3, 30

Grand Canyon Skywalk Development, LLC

v. ‘Sa’ Nyu Wa Inc.,

715 F.3d 1196 (9th Cir. 2013)..............................15

Jackson v. Payday Financial, LLC,

764 F.3d 765 (7th Cir. 2014), cert.

denied, 575 U.S. 983 (2015) .............................3, 18

Kodiak Oil & Gas (USA) Inc. v. Burr,

932 F.3d 1125 (8th Cir. 2019).................... 3, 17, 18

TABLE OF AUTHORITIES—Continued

Page(s)

Montana v. United States,

450 U.S. 544 (1981) ...................................... passim

Nevada v. Hicks,

533 U.S. 353 (2001) .................................. 14, 20, 30

Plains Commerce Bank v. Long Family

Land & Cattle Co.,

554 U.S. 316 (2008) ...................................... passim

Stifel, Nicolaus & Co. v. Lac du Flambeau

Band of Lake Superior Chippewa

Indians,

807 F.3d 184 (7th Cir. 2015)................................27

Strate v. A-1 Contractors,

520 U.S. 438 (1997) ...................... 14, 20, 24, 25, 29

United States v. FMC Corp.,

531 F.3d 813 (9th Cir. 2008)..................................9

United States v. Shoshone-Bannock Tribes,

229 F.3d 1161, 2000 WL 915398 (9th

Cir. 2000), cert. denied, 532 U.S. 1019

(2001) ......................................................................6

Water Wheel Camp Recreational Area, Inc.

v. LaRance,

642 F.3d 802 (9th Cir. 2011)................................15

Window Rock Unified School District v.

Reeves,

861 F.3d 894 (9th Cir. 2017)............................3, 15

TABLE OF AUTHORITIES—Continued

Page(s)

Zidell Explorations, Inc. v. Conval

International, Ltd.,

719 F.2d 1465 (9th Cir. 1983)..............................22

STATUTES

28 U.S.C. § 1254(1)......................................................1

42 U.S.C. § 6901 et seq. ...............................................5

42 U.S.C. § 9601 et seq. ...............................................5

OTHER AUTHORITIES

5 Corbin on Contracts § 24.29 (Online ed.,

2019) .....................................................................22

Eagles, Hotel California (Asylum Records

1976) .....................................................................21

Unemployment on Indian Reservations at

50 Percent: The Urgent Need to Create

Jobs in Indian Country: Hearing Before

the S. Comm. on Indian Affairs, 111th

Cong. (2010) .........................................................32

PETITION FOR A WRIT OF CERTIORARI

Petitioner FMC Corporation respectfully petitions

this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS AND ORDERS BELOW

The opinion of the court of appeals (App. 1a-55a)

is reported at 942 F.3d 916. The district court’s

opinion (App. 56a-89a) is available at 2017 WL

4322393.

JURISDICTION

The court of appeals entered its opinion on

November 15, 2019, App. 1a, and denied rehearing en

banc on January 13, 2020, id. at 90a. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Because the asserted tribal jurisdiction at issue in

this case is outside the Constitution and not based on

any federal statute, there are no relevant

constitutional or statutory provisions.

INTRODUCTION

This case seeks review of the Ninth Circuit’s

expansive conception of tribal authority over

nonmembers on non-Indian fee land. In the decision

below, the Ninth Circuit held that respondent

Shoshone-Bannock Tribes (Tribes) had jurisdiction to

impose what amounts to a perpetual, $1.5 million

annual penalty on petitioner FMC Corporation (FMC)

based on the presence of hazardous waste on FMC’s

own fee land, even where that waste is subject to a

containment plan designed and approved by the U.S.

Environmental Protection Agency (EPA).

That

decision directly conflicts with the decisions of this

Court and those of other circuits. And it underscores

that the Ninth Circuit has become a stark outlier in

liberalizing the test for determining whether, and

when, tribal jurisdiction may be exercised over

nonmembers. This Court’s intervention is needed.

Because nonmembers “have no say in the laws and

regulations that govern tribal territory,” and tribal

sovereignty itself “is ‘a sovereignty outside the basic

structure of the Constitution,’” this Court has long

held that Indian tribes generally lack authority over

nonmembers, especially when it comes to non-Indian

fee land. Plains Commerce Bank v. Long Family

Land & Cattle Co., 554 U.S. 316, 330, 337 (2008)

(citation omitted); Montana v. United States, 450 U.S.

544, 565 (1981) (“[T]he general proposition [is] that

the inherent sovereign powers of an Indian tribe do

not extend to the activities of nonmembers of the

tribe.”). This rule is subject to two exceptions, which

stem from this Court’s decision in Montana v. United

States, known as the “Montana exceptions.”

Under the first Montana exception, a tribe may

regulate “the activities of nonmembers who enter

consensual relationships with the tribe or its

members, through commercial dealing, contracts,

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

565. And, under the second, a tribe may regulate

“conduct [that] threatens . . . the political integrity,

the economic security, or the health or welfare of the

tribe.” Id. at 566. Critically, however, there is a more

fundamental limit: even if a Montana exception is

met, a tribe’s regulation of nonmembers “must stem

from the tribe’s inherent sovereign authority” and,

thus, is permitted only “to the extent necessary to

protect tribal self-government [and] to control

internal relations.” Plains Commerce, 554 U.S. at

332; see Montana, 450 U.S. at 564 (emphasis added).

This Court has repeatedly stressed that Montana’s

exceptions are “limited” and should not be expanded.

Plains Commerce, 554 U.S. at 330 (citation omitted).

Nonetheless, some courts have pressed Montana’s

limits, and confusion exists over the scope of tribal

power over nonmembers. Twice in recent years this

Court has granted certiorari to address questions

regarding the scope of Montana—although in one case

(Plains Commerce), it resolved the question presented

on narrow grounds and, in the other (Dollar General

Corp. v. Mississippi Band of Choctaw Indians, 136 S.

Ct. 2159, 2159 (2016)), it split 4-4, and so issued no

opinion at all. Accordingly, confusion has persisted.

The Ninth Circuit, in particular, has repeatedly

stretched Montana’s limits, leading one judge to

observe that the court, in effect, has “flip[ped]

Montana’ s general rule on its head.” Window Rock

Unified Sch. Dist. v. Reeves, 861 F.3d 894, 907, 916

(9th Cir. 2017) (Christen, J., dissenting). In this case,

the Ninth Circuit reached a new extreme. The court’s

decision overhauls not one but both Montana

exceptions, while disregarding the touchstone

requirement that the regulation at issue must be

necessary to set conditions on entry, preserve tribal

self-government, or control internal relations to begin

with. The court’s decision not only flouts this Court’s

precedent, but directly conflicts with the decisions of

other circuits. See, e.g., Kodiak Oil & Gas (USA) Inc.

v. Burr, 932 F.3d 1125, 1138 (8th Cir. 2019); Jackson

v. Payday Fin., LLC, 764 F.3d 765, 783 (7th Cir.

2014), cert. denied, 575 U.S. 983 (2015).

The practical consequences of the decision below

will be dramatic. Under the Ninth Circuit’s decision

in this case, an agreement or relationship entered into

by a nonmember with a tribe—even under threat of

massive regulatory penalties—triggers regulatory

and adjudicatory jurisdiction over all aspects of the

arrangement, as later characterized by the tribe’s

own courts. Likewise, the tribe’s assertion of a

speculative threat is a basis for exercising tribal

jurisdiction over nonmembers on their own fee lands,

even where the federal government itself (EPA, here)

has rejected the alleged threat. And, on top of that,

there is no requirement that a tribe tie the regulation

at issue to its inherent authority to protect tribal selfgovernment or control internal relations.

In a circuit home to more than 400 of the nation’s

567 federally-recognized Indian tribes, this

fundamental refashioning of tribal sovereignty is a

recipe for uncertainty and strife among nonmembers

and tribes, as well as jurisdictional conflict among

federal, state, local, and tribal governments.

The petition should be granted.

STATEMENT OF THE CASE

A. FMC’s Fee Land And EPA’s Containment

Plan For Waste On The Site

FMC owns 1,450 acres of fee land a few miles west

of Pocatello, Idaho, located mostly inside the eastern

boundary of the Fort Hall Indian Reservation. App.

56a. Fee title to the on-reservation land passed from

the Tribes under the General Allotment Act, and later

to FMC. The adjacent reservation land consists

largely of other fee parcels owned by non-Indians,

including the Pocatello Municipal Airport, owned by

the City of Pocatello, and a railroad owned by Union

Pacific Railroad, which runs through the reservation

alongside FMC’s property. CA Excerpts of Record

(ER) 877-78, 969, 971, 1211. Interstate Highway 86

and U.S. Highway 30 cut through the reservation

adjacent to FMC’s property as well. See CA9 FMC

Opening Br. 5-6 (maps of area).

From 1949 to 2001, FMC and its predecessors

owned and operated an elemental phosphorus

processing plant on FMC’s land. ER946. Elemental

phosphorus is a basic ingredient used in a variety of

everyday products, such as soda, cereal, flour, and

toothpaste. However, the processing of elemental

phosphorus generates a number of byproducts,

including solidified elemental phosphorus, phossy

water containing residual phosphorus particles, and

phosphine gas, which can be harmful—if unmanaged.

App. 18a-19a; ER844, 847, 937, 955, 976.

But the elemental phosphorus and byproducts on

FMC’s land were not unmanaged. To the contrary,

they are heavily regulated under numerous federal

environmental laws, including the Resource

Conservation and Recovery Act (RCRA), 42 U.S.C.

§ 6901 et seq.; Comprehensive Environmental

Response, Compensation, and Liability Act

(CERCLA), id. § 9601 et seq.; and extensive

regulations under those statutes. App. 17a-19a. And

they are subject to extensive monitoring to this day.

In 1990, EPA designated FMC’s land, along with a

neighboring fertilizer plant, a “Superfund Site” under

CERCLA, and spent years studying it to determine

the remedial measures necessary to protect human

health and the environment. App. 71a-73a; ER944,

967. EPA proposed an elaborate remediation plan for

the site, under both RCRA and CERCLA. The RCRA

remedy is embodied in a consent decree, which,

among other things, called for the construction of

state-of-the-art waste containment ponds, and

stringent monitoring controls. App. 6a, 8a-9a; ER850,

856, 1152-58. The CERCLA remedy was set forth in

a 1998 Record of Decision, later updated in 2012, and

required additional remedial measures and

monitoring. App. 17a-18a; ER939-45.

From the outset, the Tribes objected to containing

the waste on FMC’s property, arguing that doing so

would pose an unacceptable threat to the health and

safety of the Tribes. But, after consultation with the

Tribes and careful consideration, EPA disagreed and

found that containing and monitoring the waste in

place is “protective of human health and the

environment.” Id. at 941-44; see id. at 915-17, 959,

965. Indeed, in EPA’s judgment, it is the removal of

the waste that would present the real threat. See id.

at 958-59. And, in rejecting the Tribes’ challenge to

the consent decree, the Ninth Circuit itself found that

“the Tribes have presented no evidence that capping

the ponds poses a threat to human health or the

environment.” United States v. Shoshone-Bannock

Tribes, 229 F.3d 1161, 2000 WL 915398, at *2 (9th

Cir. 2000), cert. denied, 532 U.S. 1019 (2001).1

In urging the Ninth Circuit to uphold the RCRA consent

decree, the United States likewise stated that there is “no

evidence” of harm based on any “past violations” of federal law

and that EPA’s plan to contain the waste on FMC’s land “fully

protected human health and the environment.” U.S. Br. *24-25,

*31 & n.20 (Feb. 7, 2000), 2000 WL 33996529; see U.S. Opp. Br.

*17-18, Shoshone-Bannock Tribes v. United States, 532 U.S.

1019 (2000) (No. 00-1262), 2000 WL 34001040.

The phosphorus-related waste has now been on

FMC’s land for more than 70 years, and there is no

evidence of any “measurable harm” to the Tribes or

anyone else in the vicinity. ER18-20.

B. The

Tribes’

Increasing

Regulatory

Demands And Closure Of FMC’s Plant

Unable to derail EPA’s containment plan, the

Tribes sought to impose their own regulatory

demands on FMC based on the assertion of tribal law.

In 1997, the Tribes demanded that FMC apply to

their Land Use Policy Commission (LUPC) for a

permit to construct EPA-mandated containment

ponds, and threatened to enjoin construction in tribal

court if FMC did not comply. ER1200-01 ¶ 4; id. at

1246-47 ¶¶ 3-4. Two weeks later, the Tribes upped

their demands by adding a disposal fee of $182 million

annually—an amount so large it would have required

FMC to close its operations. Id. at 1093.

Eventually, after a series of letters and meetings

over the course of a year or so in which the Tribes

repeated their demands, FMC relented and entered

into a settlement agreement with the Tribes, in order

to avoid even more crippling regulatory penalties. As

stated in a May 19, 1998 letter, “in lieu of the

hazardous and nonhazardous waste permit fees”

established by the Tribes’ then current Guidelines,

FMC agreed to pay the Tribes a “one time startup” fee

of $1 million, and an annual “hazardous and

nonhazardous fixed permit” fee of $1.5 million.

ER1045-46; App. 63a. FMC paid the startup fee and

$1.5 million annual fee from 1998 to 2001. App. 63a.

In 2001, FMC was forced to close its plant due to a

sudden and unexpected increase in energy prices.

FMC stopped disposing of waste on the site and began

dismantling the facility altogether.

ER844.

Meantime, FMC worked with EPA to supplement the

existing containment plan, including construction of

protective caps engineered with millions of tons of

clean soil, and implementing extensive additional

monitoring controls. Id. at 845-46, 940-43, 960-61.

EPA later affirmed that the updated plan, as

embodied in an Interim Record of Decision

Amendment (IRODA), is “protective of human health

and the environment.” Id. at 939-44, 956.

Today, after implementation of these measures,

FMC’s site is a series of grassy and shrub-covered

rolling hills, underneath which the capped ponds are

secured, with monitoring devices on top. Id. at 96466, 975; FMC Opening CA9 Br. 16 (photo).

C. This Dispute And Tribal Court Process

Resulting In The Judgment At Issue

After the plant’s closure, the Tribes took the

position that FMC is required to obtain a special use

permit and pay the $1.5 million annual fee for as long

as the waste remains on the site, which, under EPA’s

plan, likely will be for centuries. ER1054-55. The

Tribes also demanded that FMC obtain additional

building and other permits. See id. at 1060-81. FMC,

however, maintained that it only agreed to pay the

fees while FMC was actually disposing waste at the

site (which it did), but not after the plant closed.

In 2005, the Tribes filed a motion in the RCRA

consent decree action in federal court seeking a

declaration that FMC was required to comply with

their various demands. The district court ruled for

the Tribes, and ordered FMC to exhaust its

jurisdictional objections in tribal court first. App. 9a.

On appeal, the Ninth Circuit reversed, holding that

the Tribes—who were not parties to the consent

decree—had no right to enforce the decree. United

States v. FMC Corp., 531 F.3d 813 (9th Cir. 2008).

Meanwhile, however, FMC embarked on what

ended up being an eight-year, tribal-court exhaustion

process. That process culminated in a 2014 Tribal

Court of Appeals (TCA) judgment that FMC owed the

Tribes some $19.5 million in unpaid permit fees for

2002-2014. App. 3a, 23a. The tribal courts found that

the Tribes’ jurisdiction extended to all matters

regarding “the permitting process, and the ancillary

issues related to it,” including both “regulatory and

adjudicatory” jurisdiction. ER172.

The Shoshone-Bannock tribal courts operate

subject to the sole governing, political arm of the

Tribes—the Business Council—and tribal court

judges thus “serve at the pleasure of the Fort Hall

Business Council.” Id. at 366, 980. The tribal court

proceedings in this case were marked by striking

irregularities. For example, while FMC’s case was

pending before them, two of the three TCA Judges

who initially heard and decided the case made public

remarks at a law school conference evidencing a clear

bias in favor of tribal jurisdiction.

One of the judges, Fred Gabourie, criticized this

Court’s decisions on tribal jurisdiction, describing

Montana as “murderous to Indian tribes” and

emphasizing the need to “get around” it. Id. at

772:10-15, 774:24-775:3. He also observed that it was

important for tribal appellate courts “to step in . . . to

protect the tribe,” id. at 791:15-18, for example, by

“tak[ing] the case and mold[ing] it.” Id. at 768:20769:10. The other judge, Mary L. Pearson, likewise

emphasized the importance of “avoid[ing]” “bad

[Supreme Court] decisions” on tribal jurisdiction. Id.

at 789:4-8. And she confessed to the audience that

“we’re sitting on [a case] now that we know is going to

go up, so we’re saying our prayers as well as reading

the cases.” Id. at 778:17-20.

Once these stunning remarks became public,

Judges Gabourie and Pearson were removed and

replaced with two new judges. But the new panel

refused to reconsider the previous ruling of the TCA

on the first Montana exception, explaining that the

court had “previously ruled” that it had jurisdiction

under that exception. Id. at 115. Moreover, the TCA

took the unusual step of receiving evidence on the

second Montana exception itself—while the case was

on appeal—thus depriving FMC of any opportunity

for appellate review of that decision, since the TCA is

the Tribes’ highest court. CA9 FMC Opening Br. 56.

Yet, while the TCA went out of its way to allow

evidence by the Tribes, it barred FMC from

presenting evidence that came to light during the

case. Id. at 56-57. Remarkably, the TCA also

assessed nearly $1 million in attorney’s fees against

FMC simply for disputing the Tribes’ jurisdiction to

impose their regulatory demands. ER46, 132.

D. Federal Court Decisions Below

Once the TCA issued its final judgment, FMC filed

a complaint in federal district court seeking a

declaration that the TCA’s judgment was not

enforceable because the Tribes lacked jurisdiction

over FMC and the tribal court proceedings violated

due process. App. 25a; ER637-721.

In September 2017, the district court issued a

decision holding that the tribal court’s judgment

should be enforced. App. 56a. The court first held

that the Tribes had jurisdiction over FMC under the

first Montana exception, reasoning that FMC’s

decision to accede to the Tribes’ permitting demands

so it could construct the containment ponds was “a

simple business deal” representing the “same type of

consensual relationship” approved under Montana.

Id. at 78a, 23a-24a. But the court concluded that the

judgment could not be enforced under the second

Montana exception, because “the Tribes have never

explained why an annual fee of $1.5 million is

necessary to provide . . . supplemental protection”

over and above EPA’s remediation plan. Id. at 85a.

The Ninth Circuit affirmed the district court’s

decision enforcing the TCA’s judgment—but went

even further than the district court by holding that

the Tribes had jurisdiction to impose the annual $1.5

million fee under the second Montana exception as

well. Id. at 55a-56a. As to the first Montana

exception, the court found that FMC had consented to

tribal jurisdiction because it “negotiated and entered

into [a] permit agreement with the Tribes” requiring

“an annual $1.5 million permit fee” to keep waste on

FMC’s land. Id. at 30a. In the court’s view, “FMC

should have reasonably anticipated that” this

agreement would “‘trigger’ tribal regulatory

authority.” Id. at 32a (citation omitted).

As to the second Montana exception, the court

acknowledged that the waste was subject to an EPAapproved containment plan, but reasoned that, “no

matter how well [EPA’s] system is designed, the

system may fail.” Id. at 44a-45a (quoting district

court). Then the court excused the Tribes’ failure to

account for how the fees would be spent to remedy this

threat, stating: “There is nothing . . . requiring the

Tribes to show that the $1.5 million annual use

permit fee [would] be spent on supplemental

measures, beyond those now being taken by EPA, to

protect against hazards posed by [the] waste.” Id. at

47a. Indeed, the court suggested that a tribe might

actually charge more if it liked. Id. at 47a-48a.

Finally, the court held that the Tribes had

adjudicatory as well as regulatory jurisdiction over

FMC. Id. at 48a-49a. The court recognized that “the

Supreme Court has never decided whether a Tribe’s

adjudicatory jurisdiction is necessarily as extensive

as its regulatory jurisdiction.” Id. at 48a. But the

court held that, where a tribe may “regulate the

activities of nonmembers, ‘civil jurisdiction over

disputes arising out of such activities presumptively

lies in the tribal courts.’” Id. (citation omitted).

Likewise, the court brushed off FMC’s due process

challenge to the tribal court proceedings, finding that

there was nothing “indicat[ing] bias against FMC”

and that “‘[e]mpirical studies’” show that “‘tribal

courts are even-handed in dispensing justice to

nonmembers.’” Id. at 52a, 54a (citation omitted).

The Ninth Circuit denied FMC’s petition for

rehearing en banc. Id. at 90a-91a.

REASONS FOR GRANTING THE WRIT

I. THE

NINTH

CIRCUIT’S

DECISION

CONFLICTS WITH THE DECISIONS OF

THIS COURT AND OTHER CIRCUITS

The Ninth Circuit decision below broadly expands

tribal jurisdiction over nonmembers—in conflict with

the decisions of this Court and other circuits.

A. The Ninth Circuit Refuses To Recognize A

Fundamental Limitation On Tribal

Sovereignty Over Nonmembers

1. America was founded on the right of people to

govern themselves—a right that depends on having a

say in that government. Tribal sovereignty over

nonmembers, however, stands in stark contrast.

“[N]onmembers have no part in tribal government—

they have no say in the laws and regulations that

govern tribal territory.” Plains Commerce Bank v.

Long Family Land & Cattle Co., 554 U.S. 316, 337

(2008). This Court, accordingly, has long held that

“efforts by a tribe to regulate nonmembers” are

“‘presumptively invalid.’”

Id. at 330 (citation

omitted). Moreover, the Court has held that this

presumption “is particularly strong when the

nonmember’s activity occurs on land owned in fee

simple by non-Indians.” Id. at 328. Indeed, a key

purpose of the Allotment Acts was to dissolve tribal

jurisdiction over fee lands conveyed under the Acts,

like the land here. See Montana v. United States, 450

U.S. 544, 559 n.9 (1981).2

While much of the attention in cases involving the

exercise of tribal jurisdiction over nonmembers

centers on the Montana exceptions, this Court’s

precedents make clear that there is a minimum

requirement a tribe must meet regardless of the

exceptions: the tribe must show that its regulation of

nonmembers “stem[s] from the tribe’s inherent

sovereign authority to set conditions on entry,

2 This rule, of course, does not mean that nonmember

interactions or agreements with tribes are unregulated. Rather,

it means that they are regulated like everything else—subject to

state and federal law, enforceable in state and federal court.

preserve tribal self-government, or control internal

relations.” Plains Commerce, 554 U.S. at 337; see

Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997)

(“[A] [tribe’s inherent power does not reach] beyond

what is necessary to protect tribal self-government or

to control internal relations.” (first alteration added)

(quoting Montana, 450 U.S. at 564)).

As this Court has explained, “[t]he logic of

Montana is that certain activities on non-Indian fee

land . . . may intrude on the internal relations of the

tribe or threaten tribal self-rule,” and thus may be

regulated “[t]o the extent they do.” Plains Commerce,

554 U.S. at 334-35 (emphasis added). But “[w]here

nonmembers are concerned, the ‘exercise of tribal

power beyond what is necessary to protect tribal selfgovernment or to control internal relations is

inconsistent with the dependent status of the tribes,

and so cannot survive without express congressional

delegation.’” Nevada v. Hicks, 533 U.S. 353, 359

(2001) (quoting Montana, 450 U.S. at 564) (emphasis

added). Thus, irrespective of the Montana exceptions,

a tribe has no authority to regulate nonmembers

outside of these specified areas of sovereign concern.

As the Court put it in Plains Commerce, “[e]ven

then”—i.e., even when an exception is met—“the

regulation must stem from the tribe’s inherent

sovereign authority to set conditions on entry,

preserve tribal self-government, or control internal

relations.” 554 U.S. at 337 (emphasis added).

2. The Ninth Circuit, however, has repeatedly

ignored this touchstone limit. For example, seizing on

the Court’s passing observation in Plains Commerce

that the defendant there had no reason to

“anticipate[]” the assertion of tribal jurisdiction over

its sale of land, the Ninth Circuit has applied a far

broader test that looks to whether a nonmember

should have “reasonably anticipated” the exercise of

tribal jurisdiction. See, e.g., Grand Canyon Skywalk

Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196, 1206

(9th Cir. 2013) (citing Plains Commerce, 554 U.S. at

338); Water Wheel Camp Recreational Area, Inc. v.

LaRance, 642 F.3d 802, 817 (9th Cir. 2011) (same); see

App. 32a (reasoning that “FMC should have

reasonably anticipated that its interactions [with the

Tribes] might ‘trigger’ tribal regulatory authority”

(citing Water Wheel, 642 F.3d at 818)).

That test is circular—what can be “reasonably

anticipated” depends on the governing law regarding

tribal jurisdiction, which is the very subject in

dispute. Yet, time and again the Ninth Circuit has

invoked that amorphous test as a warrant to find

tribal jurisdiction over nonmembers.

As Judge

Christen observed, the Ninth Circuit’s tribal

jurisdiction jurisprudence has “flip[ped] Montana’s

general rule on its head.” Window Rock Unified Sch.

Dist. v. Reeves, 861 F.3d 894, 907, 916 (9th Cir. 2017)

(Christen, J., dissenting) (describing trend in Ninth

Circuit decisions). In effect, the Ninth Circuit has

created a caveat emptor regime in which a

nonmember’s interactions with a tribe can subject it

to tribal jurisdiction based simply on a court’s later

view that the nonmember should have known what it

was getting into—even where, as here, the underlying

events or interactions occurred years earlier.

Here, despite the fact that FMC strenuously

pressed the argument in its briefs and at oral

argument, the Ninth Circuit eschewed any

determination whether the tribal regulation at issue

stems from the Tribes’ inherent sovereign authority—

i.e., its authority to set conditions on entry, control

internal relations, or preserve tribal selfgovernment.3 Instead, as it has done in prior cases,

the Ninth Circuit simply disregarded that threshold

limitation on tribal sovereignty, and began and ended

its analysis of tribal jurisdiction with the Montana

exceptions. See App. 46a-47a.

As explained below, the court’s Montana analysis

is grossly at odds with this Court’s precedents. But

the Ninth Circuit’s more basic failure to enforce the

inherent limits on tribal sovereignty alone was

outcome determinative. It is clear that the tribal

jurisdiction at issue was not necessary to protect any

of the aspects of inherent tribal sovereignty

recognized by this Court. Because FMC owns the

land on which the waste sits, the permit fees cannot

possibly be justified by the Tribes’ inherent authority

to set conditions on entry.

Likewise, the fees

obviously have nothing to do with controlling internal

relations, like membership.

Nor are the fees necessary to preserve tribal selfgovernment. The Tribes existed, and maintained

their political integrity, for centuries before they

attempted to impose fees on the presence of material

on another landowner’s fee land. Moreover, as

discussed, EPA is directly—and extensively—

regulating the containment of the waste on FMC’s

property, belying any claim that extraction of the

permit fees at issue is necessary for the Tribes’

continuing political existence. See Montana, 450 U.S.

at 564 n.13 (explaining that tribal regulation of

3 This argument was a central feature of FMC’s appeal.

See CA9 FMC Opening Br. 29, 49-51; CA9 FMC Response &

Reply Br. 8; CA9 Oral Argument 13:20-13:41, 17:00-17:55 (May

17, 2019); CA9 FMC Pet. for Reh’g 9-11.

hunting and fishing by nonmembers was not

“necessary to Crow tribal self-government” given that

the State has traditionally regulated hunting and

fishing on fee lands within the reservation).

3. The Ninth Circuit’s reliance on the Montana

exceptions alone to justify tribal jurisdiction over

nonmembers places it in square conflict with the

Seventh and Eighth Circuits. In Kodiak Oil & Gas

(USA) Inc. v. Burr, for example, the Eighth Circuit

concluded that a tribe lacked jurisdiction over claims

for “royalties from wastefully-flared gas” from wells

on trust land within a reservation. 932 F.3d 1125,

1129-30 (8th Cir. 2019). The Eighth Circuit held that,

although “[t]he oil and gas companies’ leases are

consensual relationships with tribal members” that

might otherwise qualify under Montana’s first

exception, “[a] consensual relationship alone is not

enough.” Id. at 1138 (emphasis added). “Even where

there is a consensual relationship with the tribe or its

members, the tribe may regulate non-member

activities only where the regulation ‘stem[s] from the

tribe’s inherent sovereign authority to set conditions

on entry, preserve tribal self-government, or control

internal relations.’” Id. (quoting Plains Commerce,

554 at 336). The court explained that the federal

regulation of oil and gas leases on allotted lands

defeated the notion that tribal regulation in this area

was “necessary for tribal self-government.” Id.

Kodiak is on all fours with this case. Here, as in

Kodiak, the Tribes argue that tribal jurisdiction

exists under Montana’s first exception for “consensual

relationships.” Yet, in this case, the Ninth Circuit

held that the existence of such a relationship alone

was sufficient to establish tribal jurisdiction under

Montana, App. 33a-34a, whereas in Kodiak the

Eighth Circuit held that such a consensual

relationship (even when present) “alone is not

enough.” 932 F.3d at 1138 (emphasis added). And

here, as in Kodiak, the fact that the federal

government is already heavily regulating the alleged

threat eliminates any argument that tribal regulation

is necessary to preserve tribal self-government. Id. If

anything, Kodiak is a stronger case for tribal

jurisdiction, because the land there was held in trust

by the federal government for the benefit of the tribe.

Here, the land is purely private fee land. Kodiak thus

squarely conflicts with the decision below.

The decision below also conflicts with Jackson v.

Payday Financial, LLC, 764 F.3d 765 (7th Cir. 2014).

Once again, the tribal defendants sought to establish

tribal jurisdiction under Montana’s first exception

(there, based on a loan contract specifying a tribal

forum for resolving disputes). Id. at 777. Yet, the

Seventh Circuit held that, under this Court’s

precedents, “a nonmember’s consent to tribal

authority is not sufficient to establish the jurisdiction

of a tribal court.” Id. at 783 (emphasis added).

Rather, the relevant “regulation must stem from the

tribe’s inherent sovereign authority to set conditions

on entry, preserve tribal self-government, or control

internal relations.” Id. (emphasis omitted) (quoting

Plains Commerce, 554 U.S. at 337). Because the

tribal defendants had “made no showing that the

present dispute implicates any aspect of ‘the tribe’s

inherent sovereign authority,’” the court held,

Montana’s first exception did not apply. Id.

In sum, in the Seventh and Eighth Circuits, the

rule is that fitting a case within a Montana exception

is not enough to trigger tribal jurisdiction. Instead, a

tribe must show that the regulation stems from its

inherent sovereign authority. In the Ninth Circuit,

however, satisfying a Montana exception is enough to

trigger tribal jurisdiction—regardless of whether the

regulation at issue stems from the tribe’s inherent

sovereign authority to preserve tribal selfgovernment or control internal relations.

4. The Ninth Circuit’s consistent refusal to enforce

this inherent limitation on tribal sovereignty

warrants review. As Judge Smith explained in

Dolgencorp, Inc. v. Mississippi Band of Choctaw

Indians, disregarding this fundamental requirement

“profoundly upsets the careful balance that the

Supreme Court has struck between Indian tribal

governance, on the one hand, and American

sovereignty and the constitutional rights of U.S.

citizens, on the other hand.” 746 F.3d 167, 178 (5th

Cir. 2014) (Smith, J., dissenting), aff’d by an equally

divided court sub nom. Dollar Gen. Corp. v.

Mississippi Band of Choctaw Indians, 136 S. Ct. 2159

(2016); see id. at 178-80. This Court’s intervention is

needed to resolve this circuit conflict and eliminate

any confusion on whether the Montana exceptions

displace the inherent limits on tribal sovereignty.4

This issue split the Fifth Circuit in Dolgencorp. See 746

F.3d at 178 (Smith, J., dissenting) (criticizing panel majority for

upholding tribal jurisdiction “without a finding that jurisdiction

is ‘necessary to protect tribal self-government or to control

internal relations’”); see Dolgencorp, Inc. v. Mississippi Band of

Choctaw Indians, 746 F.3d 588, 590 (5th Cir. 2014) (Smith, J.,

joined by Jones, Clement, Owen, and Southwick, JJ., dissenting

from the denial of rehearing) (arguing that this independent

requirement is “plain” from this Court’s decisions).

B. The Ninth Circuit Vastly Expanded The

Scope Of Montana’s First Exception

The Ninth Circuit’s expansive interpretation of

the Montana exceptions also warrants review. In

finding that the Tribes had jurisdiction under the first

Montana exception, the Ninth Circuit held that “FMC

entered a consensual relationship with the Tribes,

both expressly and through its actions, when it

negotiated and entered into [a] permit agreement

with the Tribes” as to the fees at issue. App. 30a.

1. The Ninth Circuit’s decision conflicts with this

Court’s precedents confining the scope of the first

Montana exception. As this Court has explained,

“Montana’s list of cases fitting within the first

exception indicates the type of activities the Court

had in mind” for that exception. Strate, 520 U.S. at

457 (citation omitted); see Plains Commerce, 554 U.S.

at 332; Hicks, 533 U.S. at 372; see also Montana, 450

U.S. at 565-66 (citing cases). And what the cases cited

by the Court in Montana have in common is that they

all involved voluntary commercial relationships by

nonmembers who chose to go onto tribal land or do

business with a tribe or its members.

As the Court explained in Hicks, one of cases

involved “nonmember purchasers of cigarettes from

tribal outlets” on tribal lands; one involved a “general

store on the Navajo reservation”; one involved

“ranchers grazing livestock and horses on Indian

lands ‘under contracts with individual [tribal]

members’”; and one involved a tax on “nonmembers

for the ‘privilege . . . of trading within the borders’” of

tribal lands. 533 U.S. at 372 (descriptions taken from

parentheticals; citations omitted); see Plains

Commerce, 554 U.S. at 332-33 (summarizing cases).

The “consensual relationship” alleged here is

fundamentally different. Here, the agreement at

issue did not stem from FMC’s decision to do business

with the Tribes, or its use of tribal land. The Tribes

went to FMC and sought to regulate FMC’s own land.

FMC only agreed to pay the $1.5 million annual fee in

response to the Tribes’ assertion of the regulatory

power at issue—in a good faith effort to prevent the

assertion of broader regulatory jurisdiction that could

have interfered with FMC’s compliance with EPA’s

remediation plan. It would be perverse to construe

such an agreement as “consent” to the very tribal

jurisdiction it was intended to forestall.

Moreover, unlike the voluntary commercial

relationships in the cases cited in Montana, the

“consensual relationship” here cannot be terminated.

In other Montana cases, nonmembers could avoid—

and terminate—jurisdiction simply by choosing to no

longer do business with a tribe, or stay off tribal

lands. Here, FMC cannot do anything to terminate

the regulation short of removing the waste—which it

is not allowed to do under EPA’s plan. In other words,

the Ninth Circuit’s version of the first Montana

exception is like the “Hotel California”—you can

check out but you can never really leave. See Eagles,

Hotel California (Asylum Records 1976).5

The Ninth Circuit also pointed to the RCRA consent

decree, which it believed “required [FMC] to obtain tribal

permits.” App. 31a. But that is clearly wrong. First, as the

United States has already explained, nothing in the consent

decree recognized, much less created, any tribal jurisdiction to

impose any permits. See U.S. Amicus Br. § C, United States v.

FMC Corp., No. 06-35429 (9th Cir. May 14, 2007), 2007 WL

1899170. Indeed, the consent decree expressly states that it does

not create rights in anyone not a party to the decree. Id. And,

2. The decision below thus confirms the Ninth

Circuit’s sweeping conception of the first Montana

exception: in the Ninth Circuit, an agreement with a

tribe, even one involving non-Indian fee land,

establishes regulatory jurisdiction over the resulting

relationship—and adjudicatory jurisdiction to decide

the scope of such jurisdiction—as long as a

nonmember should have “reasonably anticipated that

its interactions might ‘trigger’ tribal regulatory

authority.” App. 30a, 32a (emphasis added) (citation

omitted). This case illustrates how broad that rule is.

FMC vigorously objected to the notion that it had

somehow agreed to pay a $1.5 million annual fee to

the Tribes for as long as waste remains on FMC’s

land.

But the Ninth Circuit—invoking its

“reasonabl[e] anticipation” test—declared that simply

by “enter[ing] into [a] permit agreement with the

Tribes,” FMC had agreed to give the Tribes the

regulatory power to impose that unprecedented

penalty, and the adjudicatory jurisdiction to interpret

the scope of that agreement. App. 30a-32a.6

The Ninth Circuit’s broad conception of the first

Montana exception is thus the epitome of an “in for a

penny, in for a [p]ound” regime. Atkinson Trading Co.

v. Shirley, 532 U.S. 645, 656 (2001) (citation omitted).

second, and in any event, anything FMC was “required” to do by

federal law or otherwise, can hardly establish the kind of

voluntary relationship embodied by the cases cited in Montana.

If this case had been brought as a breach-of-contract

action in state court, the Tribes would have had to establish

exactly what “contract” FMC had entered into, and its precise

terms. Moreover, under Idaho law, any contract that does not

specify its duration “is terminable at will by either party.” Zidell

Explorations, Inc. v. Conval Int’l, Ltd., 719 F.2d 1465, 1473 (9th

Cir. 1983); see 5 Corbin on Contracts § 24.29 (Online ed., 2019).

The crux of the Ninth Circuit’s holding on the first

Montana exception is that an agreement to pay

regulatory fees at one point in time creates perpetual

tribal jurisdiction to (1) adjudicate any disagreement

about the scope of that agreement, and (2) impose fees

and additional requirements, in essence, indefinitely.

That is precisely the sort of never-ending, impossibleto-revoke “consent” that this Court has emphatically

disclaimed in case after case, when propounding the

“limit[ed]” nature of the first Montana exception.

Plains Commerce, 554 U.S. at 332.

The Ninth Circuit’s reinvention of the first

Montana exception warrants certiorari.

C. The Ninth Circuit Vastly Expanded The

Scope Of Montana’s Second Exception

After expanding the first Montana exception

beyond recognition, the Ninth Circuit could have

stopped (after all, it had found jurisdiction to impose

the fees at issue). But instead, the Ninth Circuit went

out of its way to expand Montana’s second exception,

too. That ruling likewise warrants review.

This Court has explained that there is a

particularly “‘elevated threshold’” for Montana’s

second exception: “The conduct must do more than

injure the tribe, it must ‘imperil the subsistence’ of the

tribal community.” Plains Commerce, 554 U.S. 341

(citations omitted). The exception thus is a break-theglass, failsafe that confers jurisdiction when it is

“necessary to avert catastrophic consequences.” Id.

(citation omitted); see Atkinson Trading Co., 532 U.S.

at 657 n.12. And like the first exception, “Montana’s

second exception grants Indian tribes nothing ‘beyond

what is necessary to protect tribal self-government or

to control internal relations.’” Id. at 658-59 (citation

omitted). The decision below eradicates these limits,

in direct conflict with this Court’s precedent.

1. Once again, the Ninth Circuit failed to explain

how the regulation at issue (the $1.5M annual fee)

was necessary to protect tribal self-government.

Plains Commerce, 554 U.S. at 341; see Strate, 520 U.S.

at 459. And any such finding would directly conflict

with Montana itself. 450 U.S. at 565 n.13. There, this

Court held that tribal regulation of hunting and

fishing on non-Indian fee lands was not necessary to

protect tribal “self-government,” given that the State

of Montana had traditionally regulated the

nonmember activity at issue. The same goes here,

where EPA has extensively regulated the waste on

FMC’s property—and continues to regulate it.

2. The Ninth Circuit also rested its invocation of

the second Montana exception on a highly speculative

threat. While the court tried to paint the threat posed

by elemental phosphorus and its byproducts in the

most extreme terms,7 ultimately the court

acknowledged that FMC and “EPA ha[ve] taken

substantial steps to contain the toxic waste and

prevent harm.” App. 44a (quoting district court).

Indeed, EPA brought all the muscle of the federal

environmental laws to the situation, and designed

and imposed a remediation plan for the site that it

repeatedly determined would protect human health

and the environment. In compliance with federal

requirements, FMC has spent more than $100 million

7 While irrelevant to the legal issues presented here, the

Ninth Circuit’s opinion, like the tribal court decisions, misstates

the threat actually posed by the waste under EPA’s containment

plan. See CA9 FMC Response & Reply Br. 28-44.

in state-of-the-art soil caps, monitoring systems, and

other facilities. See supra at 5-6.

Yet, pointing to this Court’s statement in Plains

Commerce that a tribe may “seek to protect its

members from noxious uses that threaten tribal

welfare or security,” 554 U.S. at 336, the Ninth

Circuit held that there is jurisdiction under the

second Montana exception based on the theoretical

possibility that EPA’s plan will fail. As the court put

it, “no matter how well [a] containment system is

designed, the system may fail.” App. 44a (quoting

district court). But, if that were the way to analyze

risks, nuclear power plants could not be built, planes

could not fly, and most surgeries would be banned. By

holding that any risk, no matter how speculative,

triggers tribal jurisdiction, the Ninth Circuit’s

decision delegates to the Tribes the authority to

decide what activities are too risky to undertake on

non-Indian land on a reservation.

That sort of plenary tribal jurisdiction over

dangerous activities on non-tribal land cannot be

reconciled with this Court’s precedent. See Strate,

520 U.S. at 457–58 (“Undoubtedly, those who drive

carelessly on a public highway running through a

reservation endanger all in the vicinity, and surely

jeopardize the safety of tribal members. But if

Montana’s second exception requires no more, the

exception would severely shrink the rule.”).

Indeed, the determination of the federal agency

charged with protecting human health and the

environment that containing the waste on FMC’s

land—subject to EPA’s extensive controls—is safe

alone should defeat any argument that tribal

jurisdiction is “necessary to avert catastrophic

consequences.” Plains Commerce, 554 U.S. 341

(citation omitted).

The Tribes’ assertion of

jurisdiction is a direct affront to EPA’s finding. And

here, the Tribes must overcome history as well. As

the district court itself observed, and independent

studies have confirmed, even though the phosphorus

waste has existed on FMC’s property in large

quantities for more than 70 years, there has been “no

measurable harm” to humans or water quality. App.

73a-74a (emphasis added); see id. at 72a. In the face

of such experience, the argument that tribal

jurisdiction is “necessary” is the height of speculation.

3. Finally, and perhaps most startlingly, the Ninth

Circuit held that the Tribes were not even required to

explain how the regulation at issue was to be used to

address the alleged threat. App. 48a. It is undisputed

that the imposition of a $1.5 million annual fee does

nothing to make any “catastrophic consequence[]” less

likely. App. 44a-45a (citation omitted). The Ninth

Circuit nevertheless held that this was immaterial,

stating that “[t]here is nothing . . . requiring the

Tribes to show that the $1.5M annual use permit fee

be spent on supplemental measures, beyond those

now being taken by EPA, to protect against hazards

posed by FMC’s hazardous waste.” Id. at 47a; see also

id. at 47a-48a (suggesting, remarkably, that a tribe

might “charge substantially more,” including up to

“$3.3 billion.”) That cannot be correct. The second

Montana exception applies only when a regulation is

“necessary to avert” the alleged harm—a regulation

that concededly does nothing to reduce the alleged

harm to begin with cannot possibly qualify.

The Ninth Circuit analogized the $1.5M annual

fee at issue here to “storage” fees charged by waste

disposal facilities. Id. at 47a. But such storage fees

are paid to private companies that take and dispose

of the waste. Here, the Tribes have not taken the

waste, and are doing nothing to the waste; they

simply seek to extract fees from FMC for FMC’s own

containment of waste on FMC’s own land. In essence,

therefore, the fees at issue operate as a penalty, with

no demonstrated nexus to the threat that the Tribes

supposedly are seeking to alleviate. This Court has

never remotely suggested that Montana’s second

exception can be invoked in such a manner.

Here again, the decision below parts with other

circuits, which have heeded this Court’s admonitions

on the narrow scope of Montana’s second exception.

See, e.g., Stifel, Nicolaus & Co. v. Lac du Flambeau

Band of Lake Superior Chippewa Indians, 807 F.3d

184, 209 (7th Cir. 2015) (holding that adverse

“financial consequences” to a tribe cannot qualify

under Montana’s second exception because they do

not “threaten[] the right of tribal members ‘to make

their own laws and be ruled by them’”); Belcourt Pub.

Sch. Dist. v. Davis, 786 F.3d 653, 660 (8th Cir. 2015)

(noting that “a lax application or overly broad reading

of the second Montana exception would render

meaningless Montana’s general rule,” and thus

rejecting tribal jurisdiction over various claims,

including excessive force, arising from a nonmember

operating a school on tribal land). The Ninth Circuit,

by contrast, has eviscerated Montana’s limits.

The Ninth Circuit’s wholly unnecessary, and

wildly expansive, ruling on the second Montana

exception warrants this Court’s review.

D. All Told, The Ninth Circuit’s Revamped

Montana Framework “Swallows The

Rule” That Tribes Presumptively Lack

Jurisdiction Over Nonmembers

The decision below represents nothing less than a

ground-up overhaul of the Montana framework. This

Court has repeatedly emphasized that the Montana

exceptions should not be interpreted in a way that

“swallow[s]” or “severely shrinks” the general rule

that tribal regulation of nonmembers is invalid.

Plains Commerce, 554 U.S. at 330 (citations omitted);

Atkinson Trading Co., 532 U.S. at 655. Yet, the

decision below does just that—in several independent

ways—transforming

tribal

jurisdiction

over

nonmembers into the rule, not a rare exception.

Based on the decision below, a tribe may now

(under Montana’s first exception) assert unfettered

regulatory and adjudicatory jurisdiction over

nonmembers who enter into any sort of contractual

arrangement with the tribe. A tribe no longer has to

show the agreement’s nexus to self-government or

control of internal relations, and it is immaterial

whether the agreement itself disclaims or seeks to

limit tribal jurisdiction. And separately, even where

no contract has been signed, a tribe may assert

jurisdiction (under Montana’s second exception) to

regulate hazardous activity occurring on fee lands—

even where the relevant activity is already

extensively regulated by federal or state law, and the

tribal regulation consists of a penalty which does

nothing to remove or reduce the asserted threat.

This Court has never remotely suggested that

tribal jurisdiction over nonmembers is so expansive.

And because the Ninth Circuit—answering in the

Tribes’ favor yet another question reserved by this

Court’s precedent—held that a tribe’s adjudicatory

jurisdiction extends as far as its regulatory

jurisdiction, the decision below will channel

nonmembers into tribal court almost as a matter of

course. Indeed, because tribal exhaustion is required

for any colorable claim of tribal jurisdiction (see

Strate, 520 U.S. at 448), virtually every case involving

a tribe will now have to be adjudicated in tribal court

for starters—since there will almost always be at

least a colorable argument for tribal jurisdiction

under the reasoning of the decision below.

As this case underscores, that too will have farreaching consequences. FMC spent over a decade

litigating this case before the Tribes themselves, in

proceedings marked by striking irregularities and

blatant bias. See supra at 9-10. In reality, most

parties simply cannot afford to litigate their way

through the maze of the tribal courts for years simply

to see the inside of a federal courtroom. It is for that

reason that this Court’s tribal exhaustion

requirement has always been premised on the highly

limited scope of tribal jurisdiction. But in the Ninth

Circuit, that limited scope is no more:

Tribal

jurisdiction is now firmly the norm, not the exception.

II. THIS CASE PRESENTS A RECURRING

ISSUE

UNQUESTIONABLE

IMPORTANCE AND WARRANTS THIS

COURT’S INTERVENTION HERE

A. This Court Has Repeatedly Recognized

The Need To Enforce The Limits On

Tribal Jurisdiction Over Nonmembers

This Court has long recognized the importance of

properly defining the scope of tribal jurisdiction over

nonmembers, and has repeatedly intervened when

lower courts have misapplied the Montana

framework—even absent any circuit conflict. Indeed,

this Court twice in recent years has granted certiorari

to address the reach of Montana’s exceptions in the

absence of such a conflict. See Dollar General Corp.,

136 S. Ct. at 2159; Plains Commerce, 554 U.S. at 320;

see also Hicks, 533 U.S. at 357. This case presents a

clear circuit conflict—in addition to the same need to

clarify the limits of Montana’s exceptions.

“The ability of nonmembers to know where tribal

jurisdiction begins and ends . . . is a matter of real,

practical consequence.” Hicks, 533 U.S. at 383

(Souter, J., concurring). The Ninth Circuit’s decision

creates enormous uncertainty for any person or entity

doing business with a tribe, or operating on or

adjacent to tribal land. Tribal and nonmember

communities are often economically and socially

interdependent, to the mutual benefit of both. In a

circuit that is home to over 400 Indian tribes, there

are countless relationships that could be impacted.

The Ninth Circuit’s holding on the first Montana

exception implicates virtually all contractual

relationships between tribes and nonmembers, which

may now form the basis for purported “consent” to

tribal jurisdiction—even when (as here) the relevant

agreement was entered into years, if not decades, ago.

In each of these countless relationships, nonmembers

risk being subjected to onerous regulatory demands,

or being haled into tribal courts that operate without

fundamental constitutional guarantees. Moreover,

the Ninth Circuit’s decision invites tribes to impose

new demands on nonmembers in an effort to spur

settlement agreements that can then be used to

manufacture jurisdiction—a sure recipe for conflict.

This alone warrants this Court’s intervention.

The Ninth Circuit’s holding as to Montana’s

second exception will also imperil settled

expectations. Because the mere possibility of harm to

tribal welfare is now grounds to invoke jurisdiction—

even based on materials contained entirely on nontribal land—any entity who owns or uses land within

a reservation now risks being subject to tribal

jurisdiction. For example, under the Ninth Circuit’s

decision, tribes could seek to impose new and farreaching fees on nonmembers for ubiquitous activities

like the transportation of hazardous materials on

public roadways or tracks within the boundaries of a

reservation. See App. 34a-36a. And businesses

operating on fee lands within a reservation could be

subjected to new “permit fees” based on alleged

threats stemming from such operations.

Because (as discussed above) only colorable tribal

jurisdiction is needed to trigger the exhaustion

requirement, the decision below also will have farreaching implications even in cases where jurisdiction

would ultimately be deemed to not lie with the tribe.

In the best case scenario, nonmembers could spend

years or decades tied up in tribal litigation, before

having their rights vindicated in federal court. Much

more likely, they will be forced to settle well before

seeing the inside of a federal court. Either way, there

are few areas of the law where uncertainty can have

such dramatic consequences; and the decision below,

at a minimum, fosters enormous uncertainty.

The decision below could harm Indian tribes, too.

If the Ninth Circuit’s ruling is left to stand,

commercial entities will be wary if not unwilling to

enter into contractual arrangements with tribes, for

fear of automatically subjecting themselves to broadbased tribal jurisdiction. Businesses might likewise

be wary of operating on or close to tribal land. But

such relationships with nonmembers are often the

lifeblood of the tribal economy, and withdrawal by

nonmembers from tribal communities—where

unemployment is already high and access to

commercial services is low—could be devastating to

tribal welfare.

See Unemployment on Indian

Reservations at 50 Percent: The Urgent Need to Create

Jobs in Indian Country: Hearing Before the S. Comm.

on Indian Affairs, 111th Cong. (2010).

The decision below also invites conflict among

tribes and federal, state, and local governments.

Here, for example, the Tribes’ assertion of authority

is directly at odds with EPA’s own determinations as

to the threat posed by the waste on FMC’s land. EPA

approved a containment plan that keeps waste on

FMC’s land subject to EPA’s controls based on the

premise that doing so is protective of human health

and the environment, see supra at 6; yet the Tribes’

assertion of regulatory jurisdiction here is based on

the opposite premise. The only way FMC can avoid a

penalty under tribal law is to remove the waste from

the land, but doing so would violate federal law.

Those directly conflicting regulatory requirements

place regulated parties in an impossible situation and

undercut the effectiveness of federal and state law.

The state of Indian law in the Ninth Circuit is a

matter of singular importance, given that two-thirds

of the nation’s Indian tribes are based in the circuit,

as well as scores of reservations. California alone has

more than 100 Indian reservations—the most of any

State. And the division in authority between the

Ninth and other circuits—including the Eighth

Circuit, which is also home to many Indian tribes—is

itself of major practical significance. The rights of

both tribes and nonmembers should not vary based on

the happenstance of geography. Yet, the decision

below creates the very real possibility that the scope

of an individual tribe’s sovereign power will turn on

which jurisdiction it happens to be operating in, as

will the fundamental rights of identically situated

nonmembers.

Only this Court’s review can

reestablish nationwide uniformity and consistency in

the scope of tribal jurisdiction over nonmembers.

B. This Case Presents An Ideal Vehicle To

Clarify And Reinforce The Limits Of

Tribal Jurisdiction Over Nonmembers

This case presents an exceptionally clean vehicle

for the Court’s review. The Ninth Circuit’s opinion

squarely addresses the Montana framework in

unusually strong, frank, and unequivocal language.

The decision below is a final judgment that

conclusively determines the parties’ rights, and

therefore the last opportunity for this or any court to

address the questions presented here. And those

questions are without doubt outcome determinative.

Moreover, unlike many tribal jurisdiction cases,

which reach federal court before tribal exhaustion—

and thus present only the question of whether tribal

jurisdiction is “colorable”—FMC has fully exhausted

its remedies in tribal court, and there is no other

procedural impediment to this Court’s review. The

opportunity for this Court to review a case in such a

posture is rare, in light of the often inexorable

pressure to settle cases rather than endure years of

tribal litigation before reaching the first step of

federal review.

This case also presents an

opportunity to address both Montana exceptions, and

thus the Montana framework as a whole.

Moreover, this case involves both a tribe’s

assertion of regulatory and adjudicatory authority.

Indeed, the Ninth Circuit separately ruled that the

Tribes had both forms of jurisdiction, and were thus

permitted to impose the $1.5 million annual fee both

as a result of their regulatory power to require

permits and their adjudicatory power to interpret the

agreement as mandating fees indefinitely. App. 48a.

The practical consequences of the Tribes’ assertion of

jurisdiction in this case are also unusually penal. The

Tribes assert a right to extract an annual $1.5 million

fee from FMC—in perpetuity.

That is an

uncommonly harsh if not unprecedented penalty.

In short, it is difficult to imagine a better or more

compelling case for clarifying the limits of tribal

jurisdiction over nonmembers.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

GREGORY G. GARRE

Counsel of Record

ELANA NIGHTINGALE DAWSON

SAMIR DEGER-SEN

GENEVIEVE P. HOFFMAN

ALLISON HERZOG

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioner

March 16, 2020

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Ninth Circuit, FMC Corp. v.

Shoshone-Bannock Tribes, 942 F.3d 916

(9th Cir. 2019) .....................................................1a

Memorandum Decision and Order of the

United

States

District

Court

for

the District of Idaho, FMC Corp. v.

Shoshone-Bannock Tribes, No. 4:14-CV489-BLW, 2017 WL 4322393 (D. Idaho

Sept. 28, 2017) ..................................................56a

Order of the United States Court of Appeals for

the Ninth Circuit Denying Petition for

Rehearing En Banc, FMC Corp. v.

Shoshone-Bannock Tribes, Nos. 17-35840,

17-35865 (9th Cir. Jan. 13, 2020).....................90a

Opinion, Order, Findings of Fact and

Conclusions of Law, Shoshone-Bannock

Tribes Land Use Department and Fort Hall

Business Council v. FMC Corp., Nos. C-060069, C-07-0017, C-07-0035 (Tribal Ct.

App. filed Apr. 30, 2014), ER63-78 ..................92a

Amended Findings of Fact, Conclusions of

Law, Opinion and Order Re Attorney

Fees and Costs, Nunc Pro Tunc, ShoshoneBannock Tribes Land Use Department

and Fort Hall Business Council v. FMC

Corp., Nos. C-06-0069, C-07-0017, C-070035 (Tribal Ct. App. filed Feb. 5, 2013),

ER119-37 .........................................................111a

Page

Amended Nunc Pro Tunc Findings of Fact,

Conclusions of Law, Opinion and Order,

FMC Corp. v. Shoshone-Bannock Tribes

Land Use Department and Fort Hall

Business Council, Nos. C-06-0069, C-070017, C-07-0035 (Tribal Ct. App. filed June

14, 2012), ER158-224......................................136a

Opinion, FMC Corp. v. Shoshone-Bannock

Tribes’ Land Use Department and Fort

Hall Business Council and Shoshone

Bannock Tribes’ Land Use Policy

Commission, Nos. C-06-0069, C-07-0017,

C-07-0035 (Tribal Ct. May 21, 2008),

ER293-311 .......................................................225a

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

FMC CORPORATION, PlaintiffAppellant/ Cross-Appellee,

SHOSHONE-BANNOCK TRIBES, DefendantAppellee/ Cross-Appellant.

Nos. 17-35840

17-35865

Argued and Submitted May 17, 2019 Seattle,

Washington

Filed November 15, 2019

942 F.3d 916

Before: MICHAEL DALY HAWKINS and

WILLIAM A. FLETCHER, Circuit Judges, and

DAVID C. BURY,* District Judge.

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

The Honorable David C. Bury, United States District

Judge for the District of Arizona, sitting by designation.

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 ShoshoneBannock 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, 101 S.Ct. 1245, 67

L.Ed.2d 493 (1981), there are two potentially relevant

bases for tribal 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, 101 S.Ct.

1245. 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, 101 S.Ct.

1245. 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 from 2002 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.

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. ShoshoneBannock

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 visited Sept. 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 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/planthistory (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.

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-cleanupprocess (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 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 for storage 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 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).

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).

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

10a

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 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

11a

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 ShoshoneBannock tribal 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 Policy

Guidelines and the Hazardous Waste Management

Act of 2001, upon which the tribal use permit

requirement was premised, to the Secretary of the

Interior for approval. FMC Corp. v. Shoshone-

12a

Bannock Tribes’ Fort Hall Business Council and Land

Use Policy Commission, Case Nos. C-06-0069, C-070017, 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. 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

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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, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), and

Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct.

1404, 137 L.Ed.2d 661 (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 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

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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 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

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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

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

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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. ShoshoneBannock 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. C06-0069, 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 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

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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 Shoshone-Bannock 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 ShoshoneBannock Tribes Land Use Dep’t and Fort Hall Bus.

Council v. FMC Corp., Opinion, Order, Findings of

Facts and Conclusions of Law (Shoshone-Bannock

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”).

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

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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.; (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

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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 RCRAregulated 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):

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

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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 interim amended 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 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

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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 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

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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). “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.

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The Tribal Court of Appeals held that the Tribes

had regulatory and adjudicatory jurisdiction over

FMC under the second Montana exception.

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 ShoshoneBannock 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.

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

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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 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

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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, 107 S.Ct. 971, 94 L.Ed.2d 10

(1987)); see also United States v. Wheeler, 435 U.S.

313, 332, 98 S.Ct. 1079, 55 L.Ed.2d 303 (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 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

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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, 107 S.Ct. 971 (“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 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.

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A. Subject Matter Jurisdiction

We first determine whether the ShoshoneBannock Tribal Court of Appeals had subject matter

jurisdiction over the Tribes’ claims against FMC. To

make that determination, we must answer two