Monday, June 30, 2008

USA v. FMC Corporation

Jun 27: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35429. As explained by the Appeals Court, in the late 1990s, Plaintiff United States and Intervenor Shoshone-Bannock Tribes (the Tribes) approached Defendant FMC Corporation, a mining company operating in Idaho, about potential violations of Federal and tribal environmental laws. FMC reached an agreement with each party. FMC agreed to pay the Tribes $1.5 million per year in lieu of applying for certain tribal permits. Concerning federal law, FMC and the United States entered into a detailed agreement (Consent Decree), which they presented to the federal district court for approval. The district court approved the Consent Decree, and the Ninth Circuit affirmed. United States v. Shoshone-Bannock Tribes (FMC Corp.), 229 F.3d 1161 (9th Cir. 2000) (unpublished disposition).

In 2001, FMC ceased some of its mining operations, stopped making its annual payments to the Tribes, and refused to apply for certain tribal permits. After negotiations between the Tribes and FMC failed, the Tribes sought enforcement of the Consent Decree in district court. The district court held that the Tribes could enforce the Consent Decree as third party beneficiaries and that the Consent Decree required FMC to apply for tribal permits. FMC appealed.

The Ninth Circuit determined that the Tribes lacked standing to enforce the Consent Decree and, therefore, vacated the district court’s orders and remanded the case with instructions to dismiss the action.

In a closing note the Appeals Court said, ". . .during the pendency of this appeal, FMC began the process of applying for tribal permits, which is the main relief that the Tribes have sought in this action. 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."

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