Amicus Curiae Brief — FMC Corporation, Petitioner v. Shoshone-Bannock Tribes

No. 19-1143

In the Supreme Court of the United States

FMC CORPORATION, PETITIONER

v.

SHOSHONE-BANNOCK TRIBES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

JONATHAN D. BRIGHTBILL

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

AUSTIN L. RAYNOR

Assistant to the Solicitor

General

BRIAN C. TOTH

RACHEL E. HERON

WILLIAM B. LAZARUS

DEBORAH M. REYHER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the two exceptions articulated in Montana v. United States, 450 U.S. 544 (1981), include a

threshold requirement that any regulation stem from a

tribe’s inherent authority to set conditions on entry,

preserve tribal self-government, or control internal relations.

2. Whether the court of appeals erred in upholding

tribal jurisdiction over petitioner’s storage of hazardous

waste on its fee land within respondent’s reservation

under the two Montana exceptions.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

A. Factual background .................................................. 1

B. Procedural history .................................................... 6

Discussion ...................................................................................... 9

I. The court of appeals’ application of Montana was

incomplete in certain respects ...................................... 11

A. Tribal sovereign interests form the foundation

of the two exceptions............................................... 11

B. The court of appeals’ application of the two

Montana exceptions was correct in part but

did not fully address the relevant issues .............. 14

1. This case does not fit neatly with prior

first-exception cases ......................................... 14

2. The court of appeals erred in part in its

analysis of the second Montana exception .... 17

II. The questions presented do not merit review at

this time .......................................................................... 20

A. Any tension in the circuits is nascent .................... 20

B. The unusual circumstances here also weigh

against review .......................................................... 22

Conclusion ................................................................................... 24

TABLE OF AUTHORITIES

Cases:

Atkinson Trading Co. v. Shirley, 532 U.S. 645

(2001) ......................................................... 9, 13, 14, 16, 17, 19

City of Chicago v. Environmental Def. Fund,

511 U.S. 328 (1994)................................................................ 3

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004)................................................................ 2

Exxon Corp. v. Hunt, 475 U.S. 355 (1986) ............................ 2

(III)

IV

Cases—Continued:

Page

Jackson v. Payday Fin., LLC, 764 F.3d 765

(7th Cir. 2014), cert. denied, 575 U.S. 983 (2015)....... 21, 22

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

932 F.3d 1125 (8th Cir. 2019) ....................................... 20, 21

Montana v. United States, 450 U.S. 544 (1981) ........ passim

Nevada v. Hicks, 533 U.S. 353 (2001) ........... 11, 12, 19, 21

Plains Commerce Bank v. Long Family Land &

Cattle Co., 554 U.S. 316 (2008) ............................. passim

Strate v. A-1 Contractors, 520 U.S. 438 (1997) .........13, 15

United States v. FMC Corp.:

No. 98-cv-406, 1999 WL 35808875 (D. Idaho

July 13, 1999) ................................................................ 5

No. 98-cv-406, 2006 WL 544505 (D. Idaho Mar. 6,

2006), vacated, 531 F.3d 813 (9th Cir. 2008) ............. 7

531 F.3d 813 (9th Cir. 2008).......................................... 6, 7

United States v. Shoshone-Bannock Tribes,

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

cert. denied, 532 U.S. 1019 (2001) ................................... 3, 5

United States v. Wheeler, 435 U.S. 313 (1978)................ 9, 11

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980) .................... 15

Statutes:

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

42 U.S.C. 9601 et seq. ............................................................ 2

42 U.S.C. 9604(a) ............................................................... 2

42 U.S.C. 9606(a) ............................................................... 2

42 U.S.C. 9611(a) ............................................................... 2

42 U.S.C. 9621(b)(1) .................................................... 2, 19

42 U.S.C. 9621(c) ............................................................... 2

42 U.S.C. 9622(e)(6) ........................................................... 2

V

Statutes—Continued:

Page

42 U.S.C. 9626 .................................................................... 2

Resource Conservation and Recovery Act of 1976,

42 U.S.C. 6901 et seq. ............................................................ 3

42 U.S.C. 6903(5) ............................................................... 3

42 U.S.C. 6921-6925........................................................... 3

42 U.S.C. 6924(a) ............................................................. 19

Miscellaneous:

EPA, FMC Corporation, Inc. Hazardous Waste

Settlement, https://www.epa.gov/enforcement/

fmc-corporation-inc-hazardous-waste-settlement

(last visited Dec. 9, 2020)...................................................... 5

55 Fed. Reg. 35,502 (Aug. 30, 1990) ....................................... 2

In the Supreme Court of the United States

No. 19-1143

FMC CORPORATION, PETITIONER

v.

SHOSHONE-BANNOCK TRIBES

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is filed in response to the Court’s order inviting the Solicitor General to express the views of the

United States. In the view of the United States, the petition for a writ of certiorari should be denied.

STATEMENT

A. Factual Background

Petitioner FMC Corporation owns fee land near Pocatello, Idaho, within the boundaries of the Fort Hall

Reservation of respondent Shoshone-Bannock Tribes, a

federally recognized Indian tribe. Pet. App. 4a-5a, 56a.

For over 50 years, petitioner operated an elemental

phosphorus plant on that land. Id. at 4a-5a. The production process generated millions of tons of hazardous

waste, which is stored in ponds and buried tanker cars

at the site and also contaminates the loose soil and

(1)

2

groundwater at the site. Id. at 1a, 5a. The waste is ignitable, carcinogenic, and radioactive. Id. at 36a. The

waste stored in the ponds also produces phosphine gas,

which is both flammable and extremely toxic. See id. at

38a.

1. In 1990, the Environmental Protection Agency

(EPA) placed petitioner’s facility on the National Priorities List (NPL) under the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (CERCLA), 42 U.S.C. 9601 et seq. See 55 Fed.

Reg. 35,502, 35,507-35,509 (Aug. 30, 1990). CERCLA

authorizes the federal government to act unilaterally or

to collaborate with other parties (including tribes) to remediate contaminated sites. See Cooper Indus., Inc. v.

Aviall Servs., Inc., 543 U.S. 157, 161 (2004); 42 U.S.C.

9604(a), 9606(a), 9626. To facilitate the exercise of this

authority, CERCLA established a “Superfund” that

“may be used to clean up releases of hazardous substances” at sites listed on the NPL. Exxon Corp. v.

Hunt, 475 U.S. 355, 359-360, 374 (1986); see 42 U.S.C.

9611(a).

Once EPA initiates a formal investigation of a site, a

potentially responsible party is barred from “undertak[ing] any remedial action at the facility unless such

remedial action has been authorized by [EPA].” 42

U.S.C. 9622(e)(6). Ultimately, EPA “shall select a remedial action that is protective of human health and the

environment.” 42 U.S.C. 9621(b)(1). If the remedial action permits hazardous materials to remain on-site,

EPA must review the selected remedy at least every “5

years” to “assure that human health and the environment are being protected.” 42 U.S.C. 9621(c).

On June 8, 1998, EPA issued a “record of decision”

(ROD) under CERCLA selecting a remedial plan for

3

petitioner’s facility. C.A. E.R. (ER) 912-918 (capitalization and emphasis omitted). The ROD required petitioner to take a variety of steps to contain the waste

generated by its plant, including the “capping [of ] contaminated soils, extraction of contaminated ground water, and [implementation of ] monitoring and institutional controls.” ER 915. EPA determined that “[t]he

selected remedy is protective of human health and the

environment,” but would be subject to periodic reevaluation. ER 917.

2. Around the same time that EPA issued the CERCLA ROD, it informed petitioner of its intent to bring

an enforcement action for violations of a separate federal statute, the Resource Conservation and Recovery

Act of 1976 (RCRA), 42 U.S.C. 6901 et seq. See Pet.

App. 6a. Unlike CERCLA, which is fundamentally reactive, RCRA is prophylactic, and provides for “comprehensive” regulation of hazardous wastes “from cradle to grave,” in accordance with “rigorous safeguards

and waste management procedures.” City of Chicago v.

Environmental Def. Fund, 511 U.S. 328, 331 (1994); see

42 U.S.C. 6903(5), 6921-6925. Because RCRA does not

authorize EPA to approve tribes to implement their

own waste programs in lieu of the federal program, the

agency generally implements RCRA programs in Indian country itself.

EPA alleged that petitioner violated a host of RCRA

requirements pertaining to permitting, waste disposal

and storage, and groundwater monitoring. See generally Complaint, United States v. FMC Corp., No. 98-cv406 (D. Idaho Oct. 16, 1998). The parties entered into

settlement talks, in which respondent participated. See

United States v. Shoshone-Bannock Tribes, 229 F.3d

4

1161, 2000 WL 915398, at *1 (9th Cir. 2000) (Tbl.), cert.

denied, 532 U.S. 1019 (2001).

The parties’ settlement discussions contemplated

that petitioner would obtain any necessary tribal permits, and petitioner accordingly submitted a permit application to respondent in August 1997 for the construction of three new waste ponds at the site. See ER 1126.

The application expressly reserved objections to tribal

jurisdiction. See ER 1250. When respondent replied

that it would “not accept the application” with the jurisdictional reservation, C.A. Supp. E.R. (SER) 7, petitioner resubmitted its application with a letter “consenting to the jurisdiction” of respondent “with regard

to the zoning and permitting requirements as specified

in the current” land-use guidelines. ER 1125. Petitioner later confirmed more broadly that “[i]n connection with the land use permit, we did agree that we would

consent to tribal jurisdiction in that area.” SER 6.

While discussions were ongoing, respondent revised

its governing fee schedule for hazardous waste storage

and disposal, which provided that fees would be “deposited in the Shoshone-Bannock Hazardous Waste Management Program fund.” ER 1019. Rather than accede

to what it viewed as unacceptably high fees, petitioner

negotiated a compromise. In May 1998, the parties

agreed that petitioner would pay a one-time, $1 million

“start up” fee, as well as a $1.5 million annual fee “for

every year thereafter.” ER 1045-1046. After further

exchanges, the parties agreed that the fee would apply

not only while the three ponds were “in operation,” ER

1047, but would also “cover[ ] the plant” and “would continue to be paid for the future even if the use of [the

three ponds] was terminated in the next several years,”

ER 1049.

5

EPA subsequently filed a complaint in district court

along with a consent decree resolving EPA’s claims.

The decree required petitioner to implement a variety

of remedial measures and spend a total of approximately $170 million, including nearly $12 million in civil

penalties—the largest-ever civil penalty under RCRA

at that time. See generally Consent Decree, United

States v. FMC Corp., No. 98-cv-406 (D. Idaho July 13,

1999); EPA, FMC Corporation, Inc. Hazardous Waste

Settlement, https://www.epa.gov/enforcement/fmc-corporation-inc-hazardous-waste-settlement.

The consent decree did not take a position on whether

respondent possessed jurisdiction to regulate petitioner’s waste management activities at the site. See

ER 1151 (“This Consent Decree shall not be construed

as a ruling or determination of any issue related to any

federal, state, tribal, or local permit, if required in order

to implement this Consent Decree.”). But it did provide

that “[w]here any portion of the Work requires a federal, state, or tribal permit or approval,” petitioner

must take the “actions necessary to obtain all such permits or approvals.” ER 1150. That language required

petitioner to secure tribal permits to the extent required under other bodies of law.

The district court approved the decree over objections by respondent. See United States v. FMC Corp.,

No. 98-406, 1999 WL 35808875, at *1 (D. Idaho July 13,

1999). The court of appeals affirmed, holding that “the

record discloses a diligent assertion of RCRA claims by

the government, a fair and extensive consultation with

[respondent], and a reasonable settlement reached at

arm’s length between the government and [petitioner].”

Shoshone-Bannock Tribes, 2000 WL 915398, at *1.

6

3. In 2001, following entry of the consent decree, a

sudden rise in energy prices led petitioner to close the

facility. Pet. 7-8. Petitioner then “stopped making its

annual payments to [respondent], and refused to apply

for certain tribal permits.” United States v. FMC Corp.,

531 F.3d 813, 815 (9th Cir. 2008).

Despite the fact that the plant is no longer active,

EPA has remained heavily involved in overseeing management of the existing waste at the site. Between 2006

and 2010, phosphine gas releases from waste-storage

ponds were repeatedly detected, Pet. App. 39a, and

EPA responded by directing petitioner to take response

actions to monitor, contain, and treat the releases. See

id. at 39a-42a.

Then, in 2012, EPA adopted an Interim ROD

Amendment (IRODA) under CERCLA to “replace[ ]”

the 1998 ROD. ER 941. EPA determined that “[a]ction

is necessary to reduce infiltration of surface water into

elemental phosphorus and metals-contaminated soils

and subsequent migration of contaminants beyond” petitioner’s fee land. ER 940. The IRODA requires interim remedial actions designed to “be protective of human health and the environment,” including soil caps to

manage subsurface waste, a system for extracting and

treating contaminated groundwater, and a gas-monitoring

program. ER 941-943. Because the IRODA is only an

interim measure, a final ROD will be issued in the future. ER 944; SER 118.

B. Procedural History

1. Following petitioner’s refusal to reapply for the

relevant permits or pay the accompanying fee, respondent filed a motion for clarification in federal district

court, arguing that the consent decree required petitioner to apply for the relevant tribal permits. See

7

United States v. FMC Corp., No. 98-cv-406, 2006 WL

544505 (D. Idaho Mar. 6, 2006), vacated, 531 F.3d 813

(9th Cir. 2008). The district court agreed. Id. at *7. Petitioner then applied for the requisite permit, while objecting to tribal jurisdiction. See ER 1253-1284.

On appeal, the Ninth Circuit reversed on the ground

that respondent was not a third-party beneficiary of the

consent decree. See FMC Corp., 531 F.3d at 821. Nevertheless, petitioner’s counsel “represented to the court

that [petitioner] understands that it has the obligation

to continue, and will continue, with the current tribal

[permit] proceedings to their conclusion.” Id. at 824.

The court accepted that statement as “binding on

FMC.” Ibid.

In the permit proceeding, the tribal land-use commission determined that tribal law required petitioner

to obtain a special use permit for waste storage at the

site, and imposed the previously agreed-upon annual

fee of $1.5 million. See ER 338, 346-347. Petitioner administratively appealed that determination to the Fort

Hall Business Council, which affirmed. See ER 331,

341.

2. Petitioner then appealed to the tribal courts, challenging tribal jurisdiction. This Court has held that an

Indian tribe generally lacks jurisdiction over nonmembers on fee land within its reservation, subject to two

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.” Montana v.

United States, 450 U.S. 544, 565 (1981). Second, a tribe

may “retain inherent power to exercise civil authority

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

8

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.

The Tribal Court affirmed the business council’s decision in part. See Pet. App. 225a-245a. It held that

petitioner was subject to tribal jurisdiction, ER 318, but

that tribal law did not authorize the imposition of the

$1.5 million fee. See Pet. App. 242a-245a.

The Tribal Court of Appeals affirmed in part and reversed in part. Pet. App. 136a-224a. It held that petitioner was subject to tribal jurisdiction under the first

Montana exception and that the $1.5 million fee was authorized by tribal law. Id. at 155a, 173a, 177a; see also

ER 115. And after conducting an evidentiary hearing,

it found petitioner subject to tribal jurisdiction under

the second Montana exception, as well. Pet. App. 92a110a. The court held that petitioner owed $19.5 million

in unpaid fees from 2002 to 2014, and $1.5 million in annual fees going forward. Id. at 3a.

3. Petitioner filed suit in federal district court to enjoin enforcement of the tribal judgment. The court concluded that tribal jurisdiction lay under both Montana

exceptions. Pet. App. 76a-83a. But it ultimately enforced the tribal judgment under the first exception

alone, on the ground that respondent had failed to explain why the amount of the annual fee was necessary

to address the threat the tribe faced under the second

Montana exception. See id. at 85a-86a.

The court of appeals affirmed, concluding that the

tribal court judgment was enforceable under both Montana exceptions. See Pet. App. 1a-55a. As to the first

exception, the court held that petitioner formed the requisite “consensual relationship with the Tribes, both expressly and through its actions, when it negotiated and

9

entered into [a] permit agreement with the Tribes, requiring annual use permits and an annual $1.5 million

permit fee to store” waste on the reservation. Id. at 30a.

In the court’s view, “[t]he conduct that the Tribes seek

to regulate through the permit fees at issue—the storage of hazardous waste on the Reservation—arises directly out of this consensual relationship.” Ibid.

As to the second exception, the court of appeals cited

“extensive” evidence of “toxic, carcinogenic, and radioactive substances” at the site that “ ‘imperil the subsistence or welfare’ of the tribal community.” Pet. App.

35a-36a (quoting Montana, 450 U.S. at 566). The court

reasoned that federal regulation of the site diminished,

but did not eliminate, those risks. Id. at 44a-45a. And

it concluded that the $1.5 million annual fee had a sufficient nexus to the threat because it was lower than the

fees charged by private waste facilities. Id. at 46a.

DISCUSSION

“The sovereignty that the Indian tribes retain is of a

unique and limited character.”

United States v.

Wheeler, 435 U.S. 313, 323 (1978). Although tribes possess inherent sovereign authority to set conditions on

entry on their land, preserve tribal self-government,

and control internal relations, Plains Commerce Bank

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

(2008), they generally lack jurisdiction to regulate the

activities of “nonmembers on non-Indian fee land within

the reservation,” Atkinson Trading Co. v. Shirley, 532

U.S. 645, 659 (2001). That general rule is subject to two

exceptions: a tribe may regulate certain activities of

nonmembers who enter consensual relationships with

the tribe or its members, and it may regulate nonmember activities within the reservation that pose a serious

10

threat of harm to the tribe. Montana v. United States,

450 U.S. 544, 565-566 (1981).

Petitioner incorrectly contends that, before a court

may apply either of the Montana exceptions, it must

first determine that a particular exercise of tribal jurisdiction stems from the tribe’s inherent authority to set

conditions on entry, preserve tribal self-government, or

control internal relations. Those principles do not represent a strict threshold requirement that a court must

find satisfied. But principles of inherent authority and

sovereign self-government—which recognize the need

for a tribe to protect its members, land, resources, and

health and welfare—undergird the Montana exceptions

and inform both their scope and application.

Here, the court of appeals’ analysis of Montana’s

two exceptions was incomplete in certain respects.

Nevertheless, the court’s central conclusion that petitioner was subject to tribal jurisdiction was likely correct, and review by this Court of the precise bases for

and scope of the tribe’s jurisdiction is not warranted because those issues have not been sufficiently developed

in the course of the proceedings. Moreover, any tension

in the courts of appeals is nascent, and this case would

not be a good vehicle for addressing general issues concerning application of the Montana exceptions, given

the unusual circumstances underlying the dispute. In

the view of the United States, further review is not warranted.

11

I. THE COURT OF APPEALS’ APPLICATION OF MONTANA WAS INCOMPLETE IN CERTAIN RESPECTS

A. Tribal Sovereign Interests Form The Foundation Of

The Two Exceptions

Although an Indian tribe’s sovereign powers are

“unique and limited,” Wheeler, 435 U.S. at 323, tribes

retain “inherent sovereign authority” to preserve fundamental characteristics of self-government by protecting their land and members, as well as the health and

economic welfare of the tribe. Plains Commerce, 554

U.S. at 337. Petitioner contends (Pet. 13-14) that a challenged regulation can be sustained only if a court first

makes an independent determination that the regulation directly implicates specifically articulated interests, even when it otherwise falls within the terms of the

Montana exceptions. Petitioner raised this argument

below (Pet. 16 n.3), but the court of appeals did not directly address it. In any event, petitioner is incorrect.

Rather than imposing a “threshold limitation,” Pet. 16,

tribal sovereign interests underlay the two Montana

exceptions and inform both their application and scope.

In support of its interpretation, petitioner relies

heavily on Plains Commerce. Pet. 13-14. Although

Plains Commerce contains language suggesting a

threshold requirement, see 554 U.S. at 337 (“Even

[when the nonmember consents], the regulation must

stem from the tribe’s inherent sovereign authority to

set conditions on entry, preserve tribal self-government,

or control internal relations.”), other precedents adopt

a different characterization. In Nevada v. Hicks, 533

U.S. 353 (2001), for example, the Court characterized

tribal jurisdiction under Montana not as an exception

to a tribe’s presumptive lack of jurisdiction over nonmembers on fee land, but rather as an “exception” to

12

the general principles of inherent sovereignty later discussed in Plains Commerce. Id. at 359 n.3. If the Montana framework constitutes an exception to those principles, they do not serve as a threshold limitation on

Montana’s application. These differing descriptions reflect the simple fact that Montana is an “opinion,” “not

a statute” susceptible to precise textual interpretation.

Id. at 372. As a result, the proper interpretive approach

is to look to the Court’s body of case law as a whole, rather than isolating particular passages from individual

opinions.

Read as a whole, this Court’s precedents indicate

that general principles of inherent tribal sovereignty

provide the foundation for the Montana exceptions, rather than serving as an independent requirement for

their application. The aspects of retained tribal sovereignty that petitioner highlights—setting conditions on

“entry” to tribal lands, protecting “self-government,”

and controlling “internal relations,” Montana, 450 U.S.

at 557, 564—reflect the focus of tribal jurisdiction on

tribal members, land, resources, and health and welfare. The limited activities falling within the Montana

exceptions are regulable precisely because they directly

affect those interests, despite the fact that such activities involve the conduct of nonmembers on fee land.

See, e.g., Plains Commerce, 554 U.S. at 334-335 (“The

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.”); Montana, 450

U.S. at 564-565.

Given the character of the sovereign interests that

“give rise” to the two Montana exceptions, Plains Commerce, 554 U.S. at 341, those exceptions are properly

understood to set important limits on tribal regulation

13

of nonmembers and to require a connection between

any regulation of nonmembers and the interests of the

tribe and its members. See Strate v. A-1 Contractors,

520 U.S. 438, 459 (1997) (noting that background principles of tribal sovereignty are “[k]ey to [the second exception’s] proper application”); Plains Commerce, 554

U.S. at 330 (“These exceptions are ‘limited’ ones and

cannot be construed in a manner that would ‘swallow

the rule.’ ”) (citations omitted). Properly applied, the

exceptions ensure the requisite connection to tribal sovereignty by requiring tribal jurisdiction to bear “a

nexus” to a relevant consensual relationship, Atkinson,

532 U.S. at 656, or to address activities or threats that

would not just “injure the tribe” in some sense, but

would “ ‘imperil’ ” the tribal interests described above.

Plains Commerce, 554 U.S. at 341 (quoting Montana,

450 U.S. at 566).

Principles of tribal sovereignty may also assist in

identifying the scope of the two exceptions when a court

is confronted with circumstances departing from the

mine-run Montana case. In Plains Commerce, for example, the tribe sought to regulate “a non-Indian’s sale

of non-Indian fee land.” 554 U.S. at 330. The Court

ruled that regulation fell outside the scope of the Montana exceptions, which pertain only to “nonmember

conduct inside the reservation,” not the sale of fee land.

Id. at 332. In drawing this distinction, the Court explained that “regulation of the sale of non-Indian fee

land” that had passed out of Indian ownership as the

result of a congressional allotment—unlike “certain

forms of nonmember behavior”—“cannot be justified by

reference to the tribe’s sovereign interests.” Id. at 335336. In short, although tribal sovereign interests do not

impose a separate threshold limitation on the Montana

14

exceptions, those exceptions should be read in light of

the tribal interests they are designed to protect.

B. The Court Of Appeals’ Application Of The Two Montana

Exceptions Was Correct In Part But Did Not Fully Address The Relevant Issues

1. This case does not fit neatly with prior first-exception

cases

The first Montana exception permits a tribe to “regulate, through taxation, licensing, or other means, the

activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565. This “exception requires that the tax or regulation imposed by the Indian

tribe have a nexus to the consensual relationship itself.”

Atkinson, 532 U.S. at 656. Although the first exception

arguably applies here, this case is not a natural fit with

the Court’s prior first-exception precedents. But even

if the first exception were inapplicable, the facts here

could alternatively be analyzed under a model of direct

consent.

Petitioner’s ongoing waste-storage activity takes

place entirely on fee land. Much of that activity predated the permit agreement at issue, and was not itself

based on any underlying commercial agreement or

other arrangement with respondent. The court of appeals therefore located the requisite consensual relationship under Montana’s first exception in the permit

agreement and petitioner’s consent to tribal jurisdiction

as part of the permitting process. See Pet. App. 6a, 30a.

Because petitioner voluntarily entered the permitting

agreement, and continued tribal regulation of the site

has a “nexus” to that relationship, Atkinson, 532 U.S. at

15

656, the court of appeals held that this case falls within

the first exception, Pet. App. 30a-31a.

The fact pattern here, however, does not fit neatly

into that exception, which principally contemplates the

exercise of tribal jurisdiction over underlying commercial relationships between nonmembers and a tribe or

its members. See, e.g., Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134,

152 (1980) (upholding tribal “power to tax transactions

occurring on trust lands and significantly involving a

tribe or its members”) (cited in Montana, 450 U.S. at

566); see Strate, 520 U.S. at 457 (“Montana’s list of

cases fitting within the first exception indicates the type

of activities the Court had in mind.”) (citation omitted).

In that scenario, the tribe regulates activities arising

out of the underlying relationship, such as by imposing

a tax on the sale of goods. See, e.g., Plains Commerce,

554 U.S. at 338 (“The Bank may reasonably have anticipated that its various commercial dealings with the

Longs could trigger tribal authority to regulate those

transactions.”) (emphasis added). That situation contrasts with the one here, involving an assertion of jurisdiction over petitioner’s waste storage on its own fee

land, based on petitioner’s interactions with respondent

in its governmental capacity as regulator, rather than

as a market participant.

Although this case does not fit comfortably into

Montana’s first exception as conceived in prior cases,

that is not to say the courts below erred in finding tribal

jurisdiction based on the agreement formed in the permitting process. But that agreement may be better assessed under a theory of direct consent to jurisdiction,

rather than under the first Montana exception, which

is grounded in a tribe’s inherent authority to regulate

16

the activities of nonmembers who have entered into underlying commercial agreements or similar arrangements with the tribe or its members.

In Plains Commerce, the Court suggested that direct consent to tribal authority may form an additional

basis for tribal jurisdiction. There, tribal members argued that a nonmember “consented to tribal court jurisdiction over [a] discrimination claim by seeking the assistance of tribal courts in serving a notice to quit” the

disputed premises in connection with a state-court proceeding. 554 U.S. at 341. The Court did not address

that argument under the first exception or ask whether

the nonmember had entered a “consensual relationship[ ]” with the tribal court. Montana, 450 U.S. at 565.

Instead, it inquired whether the nonmember’s conduct

was sufficient to constitute consent to tribal jurisdiction, but found it was not. Plains Commerce, 554 U.S.

at 342; see id. at 337 (noting that nonmember may consent “either expressly or by his actions”). Although the

arguments in that case differed in certain respects from

those presented here, Plains Commerce nevertheless

informs the way consent might best be analyzed.

Assertions of jurisdiction based on a nonmember’s

direct consent to tribal authority may differ from assertions of jurisdiction over the commercial relationships

described in Montana. Under the first exception, a

tribe is empowered to regulate any activities that have

a “nexus” to the relevant relationship. Atkinson, 532

U.S. at 656. In a case of direct consent, however, a tribe

might be limited to operating within the scope of the

consent or enforcing an express agreement the parties

have entered into to resolve differences about the

tribe’s exercise of its jurisdiction.

17

Here, the potential analytical distinctions between

Montana’s first exception and a theory of direct consent

may not be consequential. The court of appeals expressly found that “FMC consented to tribal jurisdiction” during negotiations over the permit, and further

“agreed to * * * an annual use permit fee of $1.5 million

to cover FMC’s storage of its hazardous waste on the

Reservation.” Pet. App. 6a-7a; see id. at 30a. At least

with respect to the annual $1.5 million fee, which appears to represent the primary point of dispute between

the parties, see Pet. 1, the court effectively enforced the

terms of the agreement as the court understood it—

rather than, for example, allowing respondent to rely on

petitioner’s consent to jurisdiction or the permit agreement to impose additional forms of regulation beyond

those terms. This case therefore does not present a

suitable vehicle for exploring any distinctions between

the first exception and direct consent. And disputes

about the precise scope of petitioner’s consent in the

complex and unusual circumstances of this case would

not warrant the Court’s review.

2. The court of appeals erred in part in its analysis of

the second Montana exception

The second Montana exception permits tribal jurisdiction “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.”

Montana, 450 U.S. at 566. Although this exception enables a tribe to “protect its members from noxious uses

that threaten tribal welfare or security,” Plains Commerce, 554 U.S. at 336, it does not confer a general police power, see Atkinson, 532 U.S. at 657 n.12. Instead,

an exercise of tribal jurisdiction falls within the second

18

exception only if the magnitude of the actual or potential harm is substantial and the tribal regulation is appropriately tailored to address that harm. See Plains

Commerce, 554 U.S. at 341.

The court of appeals correctly found that the harm

threatened by petitioner’s toxic waste is sufficiently serious to trigger tribal jurisdiction. See Pet. App. 36a.

“The record contains extensive evidence of toxic, carcinogenic, and radioactive substances at the FMC site.”

Ibid. EPA classifies those substances as “[p]rincipal

threat wastes,” which are “those source materials considered to be highly toxic or highly mobile that generally cannot be reliably contained or would present a significant risk to human health or the environment should

exposure occur.” Id. at 37a (citation omitted). Significantly, the threat posed by this waste extends off-site.

See, e.g., id. at 21a-22a (“Arsenic and phosphorus from

the site are continuously flowing in the groundwater

from FMC’s land through seeps and springs directly

into the Portneuf River and Fort Hall Bottoms.”) (citation omitted), 107a (“[T]his threat extends * * * to

members of the Shoshone-Bannock Tribes throughout

the Reservation.”). And petitioner does not appear to

dispute that, if containment failed, the harm to respondent could be catastrophic. See id. at 22a, 103a.

But the Ninth Circuit misconceived the tailoring aspect of the analysis. In the court’s view, “[t]here is nothing * * * requiring the Tribes to show that the $1.5 million annual use permit fee be spent on supplemental

measures, beyond those now being taken by the EPA,

to protect against hazards posed by FMC’s hazardous

waste.” Pet. App. 47a. It concluded the regulation was

reasonable because the tribe “charge[d] less than the

19

open market fee for” what it regarded as “comparable

activity,” namely, private waste storage. Id. at 47a-48a.

The question, however, is not whether the scope of

tribal regulation would be reasonable in the abstract or

in some other context, but whether it has a sufficient

nexus to the character and likelihood of the specific

harm the tribe confronts. See, e.g., Atkinson, 532 U.S.

at 659 (holding that regulation must be “necessary to

vindicate” tribal interests) (emphasis added); Plains

Commerce, 554 U.S. at 341 (similar). Federal regulation bears on this inquiry to the extent it addresses the

risks a tribe faces. Specifically, tribal regulation must

be reasonably tailored to the risks in light of measures

taken by other governmental actors. See Montana, 450

U.S. at 566 n.16 (taking state regulation into account in

analyzing second exception); Hicks, 533 U.S. at 371.

Although EPA seeks to implement remedies that are

“protective of human health and the environment,” 42

U.S.C. 9621(b)(1); see 42 U.S.C. 6924(a), remediation

required by EPA at the site was not complete during

the relevant period (and is still not complete), and respondent has a substantial interest in monitoring the

site and taking steps to prepare for the contingency of

a containment failure. See Pet. App. 22a; see, e.g., SER

216-294 (describing substantive permitting requirements).

But even if respondent’s permitting regime is itself tailored to the threat, and setting any relevance of consent

to one side, it is unclear on this record whether the $1.5

million fee has an appropriate nexus to the cost of the

permitting regime. Compare Pet. App. 7a (court of appeals) (discussing tribal regulations allocating permit

fees to the “reasonable and necessary costs of administrating the Hazardous Waste Management Program”)

(citation omitted), with id. at 85a (district court) (“[T]he

20

Tribes have never explained why an annual fee of $1.5

million is necessary to provide that supplemental protection.”). The court of appeals erred by failing to ask

the right question as to nexus.

II. THE QUESTIONS PRESENTED

REVIEW AT THIS TIME

DO

NOT

MERIT

The Montana framework plays an important role in

calibrating tribal jurisdiction over nonmembers, and

there appears to be some imprecision in the case law

over the relationship between general principles of

tribal sovereignty and the Montana exceptions. But

any tension in the circuits is nascent, and the facts of

this case are highly idiosyncratic. Further review is not

presently warranted.

A. Any Tension In The Circuits Is Nascent

Petitioner contends that the circuits are in conflict

over whether the Montana exceptions include a threshold requirement that tribal jurisdiction “stem[ ] from

the tribe’s inherent authority to set conditions on entry,

preserve tribal self-government, or control internal relations.” Pet. ii; see Pet. 17-19. Although the decisions

petitioner identifies are in some tension with the decision below, they are materially distinguishable in key

respects and do not reflect a concrete conflict that

would warrant this Court’s review.

In Kodiak Oil & Gas (USA) Inc. v. Burr, 932 F.3d

1125 (8th Cir. 2019), oil and gas companies challenged

tribal jurisdiction to adjudicate claims brought by tribal

members for royalties owed from drilling operations

conducted on their individual trust allotments. Id. at

1129. The Eighth Circuit held that the tribal court

lacked jurisdiction, reasoning that “plaintiffs’ claim for

relief is based on federal law” given the “comprehensive

21

[federal] regulatory scheme.” Id. at 1135, 1137. And it

held “that, at least where non-members are concerned,

tribal courts’ adjudicative authority is limited (absent

congressional authorization) to cases arising under

tribal law.” Id. at 1135.

In the alternative, the Eighth Circuit held that the

tribe lacked legislative jurisdiction under the Montana

exceptions. Kodiak Oil & Gas (USA) Inc., 932 F.3d at

1137. The court stated that “[t]he Montana exceptions

apply only to the extent they are ‘necessary to protect

tribal self-government or to control internal relations,’ ”

and concluded that tribal jurisdiction was unnecessary

to serve those ends in light of federal regulation. Id. at

1138 (quoting Hicks, 533 U.S. at 359). But it is unclear

whether the court intended those principles to serve as

a threshold limitation or simply a touchstone for ascertaining the scope of the exceptions. And the court’s reasoning with respect to Montana is difficult to untangle

from its first alternative holding that comprehensive

federal regulation “preempted” and “left no room” for

tribal law. Id. at 1137. The court thus appears to have

concluded that federal law displaced inherent tribal sovereignty altogether in the context of that case, akin to

Plains Commerce.

In Jackson v. Payday Financial, LLC, 764 F.3d 765

(7th Cir. 2014), cert. denied, 575 U.S. 983 (2015), the

plaintiffs (citizens of Illinois) took out loans from payday lending companies (all owned by, or doing business

with, a tribal member). Id. at 768-769, 772. They sued

for violations of state law in connection with the loans.

Id. at 768. The defendants argued that the loan agreements’ forum-selection clauses required any litigation

to be conducted in tribal courts. Id. at 781. The Seventh

Circuit ruled that the tribal courts lacked jurisdiction

22

under Montana because the plaintiffs had not engaged

in any on-reservation conduct, and Montana only “permit[s] tribal regulation of nonmember conduct inside

the reservation.” Id. at 782 (quoting Plains Commerce,

554 U.S. at 332).

The defendants in Jackson also contended that jurisdiction was appropriate based on a theory of direct consent. See 764 F.3d at 783; see also id. at 769 & n.1. Consistent with the analysis above, see pp. 15-17, supra, the

court of appeals assessed that argument separately

from the Montana framework. Jackson, 764 F.3d at

783. The court reasoned that “a nonmember’s consent

to tribal authority is not sufficient to establish the jurisdiction of a tribal court,” and rejected tribal jurisdiction

on the ground that it did not “ ‘stem from the tribe’s inherent sovereign authority to set conditions on entry,

preserve tribal self-government, or control internal

relations.’ ” Id. at 783 (quoting Plains Commerce, 554

U.S. at 337) (emphasis omitted). But again, because the

case involved what the court found to be only off-reservation conduct by nonmembers, it is meaningfully different from the situation presented here.

B. The Unusual Circumstances Here Also Weigh Against

Review

The unusual circumstances of this case would also

make it less than an ideal vehicle for considering the

scope of the Montana exceptions. As to the first exception, the decision below turned in substantial part on the

unique course of dealings between these two parties, including petitioner’s decision—apparently motivated by

its desire to obtain a consent decree in the specific circumstances of this case, see Pet. App. 78a—to consent

to tribal jurisdiction over its toxic waste in the absence

23

of any underlying commercial relationship with respondent concerning that waste. Petitioner and its

amici suggest that the court of appeals’ decision has

broad implications because it treats mere compliance

with tribal regulatory measures as consent to perpetual

tribal jurisdiction. See, e.g., Retail Litig. Ctr. Amicus

Br. 9-10. The United States agrees that the implications of a nonmember’s conduct or consent to tribal jurisdiction must be assessed in the circumstances of a

particular case, rather than under any per se rule. But

the decision below does not implicate the more ambiguous examples of consent that petitioner and its amici hypothesize, given the court of appeals’ finding that petitioner expressly “consented to tribal jurisdiction.” Pet.

App. 6a.

As to the second exception, the case lies at the intersection of federal regulatory and tribal jurisdiction.

The extensive involvement of EPA, reflecting the serious risks posed by the storage of toxic waste, informs

the basis for tribal jurisdiction. And that involvement

also affects the appropriate scope of the tribal regulation in a manner that is not present in the mine-run

Montana case concerning standalone tribal regulation.

For these reasons as well, review by this Court is not

warranted in this case.

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

JONATHAN D. BRIGHTBILL

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

AUSTIN L. RAYNOR

Assistant to the Solicitor

General

BRIAN C. TOTH

RACHEL E. HERON

WILLIAM B. LAZARUS

DEBORAH M. REYHER

Attorneys

DECEMBER 2020