moffatt, thomas, barrett, rock ields hartered ummit … · 2017-09-29 · case no. 4:14-cv-489-cwd...

MEMORANDUM OF FMC CORPORATION IN SUPPORT OF MOTION TODENY THE TRIBES JURISDICTION OVER FMC UNDER THE FIRST EXCEPTIONTO MONTANA Client:4335082.1

Ralph H. Palumbo, WSB No. 04751David M. Heineck, WSB No. 09285Maureen L. Mitchell, ISB No. 8832SUMMIT LAW GROUP PLLC315 Fifth Avenue South, Suite 1000Seattle, Washington 98104-2682Telephone (206) 676-7000Facsimile (206) [email protected]@[email protected]

Attorneys for FMC Corporation

Lee Radford, ISB No. 5719MOFFATT, THOMAS, BARRETT, ROCK

& FIELDS, CHARTERED

900 Pier View Drive, Suite 206Post Office Box 51505Idaho Falls, Idaho 83405Telephone (208) 522-6700Facsimile (208) [email protected]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

FMC CORPORATION,

Plaintiff,

vs.

SHOSHONE-BANNOCK TRIBES,

Defendant.

Case No. 4:14-cv-489-CWD

MEMORANDUM OF FMCCORPORATION IN SUPPORT OFMOTION TO DENY THE TRIBESJURISDICTION OVER FMC UNDERTHE FIRST EXCEPTION TOMONTANA

Case 4:14-cv-00489-BLW Document 67-3 Filed 01/13/17 of 42

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TABLE OF CONTENTS

Page

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

I. BECAUSE THE TRIBAL COURTS RELIED ON THIS COURT’S VACATEDOPINION, THIS PROCEEDING IS A DE NOVO REVIEW OF THATRULING, AND DOES NOT REQUIRE ANY DEFERENCE TO THE TRIBALCOURTS.............................................................................................................................3

A. Standard of Review................................................................................................3

B. The District Court’s March 6, 2006 Decision Finding Tribal JurisdictionWas Error. ..............................................................................................................4

C. The LUPC, the Business Council and the Tribal Court Did Not Considerthe Facts of First Montana Jurisdiction Despite the Requirement ThatJurisdictional Issues Much First Be Exhausted in the Tribal System. .............5

D. The Ninth Circuit Vacated the District Court Opinion. ....................................6

E. The Tribal Court of Appeals Continued to Rely on the Vacated Decision,Even After It Was Vacated By the Ninth Circuit. ..............................................7

II. THE STRONG PRESUMPTION IS THAT INDIAN TRIBES DO NOT HAVEAUTHORITY OVER THE CONDUCT OF NONMEMBERS.....................................8

A. The Supreme Court Has Established a Strong Presumption That IndianTribes Do Not Have Authority Over the Conduct or Activities ofNonmembers...........................................................................................................8

B. The Tribes Have the Burden of Establishing One of Two NarrowExceptions to Montana’s General Rule Against Jurisdiction..........................11

III. THE FIRST EXCEPTION TO MONTANA IS LIMITED TO THREECATEGORIES OF CASES: (1) “COMMERCIAL CASES;” (2) “TRUSTLAND CASES;” AND (3) “WAIVER CASES”............................................................12

A. Commercial Cases: Tribes May Regulate the Conduct of NonmembersWho Voluntarily Enter Into an Agreement With the Tribe to Operate aRevenue Generating Business.............................................................................13

B. Trust Land Cases: Tribes May Regulate the Conduct of NonmembersWho Voluntarily Enter the Reservation to Engage in CommercialActivity on Tribal Lands. ....................................................................................17


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C. Waiver Cases: Tribal Courts Have Jurisdiction Over Cases Where aNonmember Knowingly Enters the Tribal Court to File Claims Against aTribal Member Regarding Conduct That Occurred on Tribal Land. ...........20

IV. THE NINTH CIRCUIT RULING ESTABLISHES THAT THE RCRACONSENT DECREE CANNOT FORM THE BASIS FOR TRIBALJURISDICTION ..............................................................................................................22

A. The Ninth Circuit’s Decision Eliminates the Consent Decree as a Basis forJurisdiction. ..........................................................................................................22

V. THE 1997 AND 1998 CORRESPONDENCE BETWEEN FMC AND THETRIBES DO NOT QUALIFY AS CONSENSUAL RELATIONSHIPS UNDERTHE FIRST MONTANA EXCEPTION.........................................................................23

A. A Consensual Relationship Cannot Be Based on the Buttelman Letter. ........23

B. A Consensual Relationship Cannot Be Based on the 1998 McGrathLetters. ..................................................................................................................26

C. The Buttelman and McGrath Letters Do Not Establish a ConsensualRelationship Under the First Montana Exception. ...........................................29

D. The Buttelman and McGrath Letters Are Limited in Scope...........................32

VI. CONCLUSION ................................................................................................................34


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TABLE OF CASES AND AUTHORITIES

Page

Cases

A&A Concrete v. White Mountain Apache Tribe,781 F.2d 1411 (9th Cir. 1986) .................................................................................................. 13

Allstate Indem. Co. v. Stump,191 F.3d 1071 (9th Cir. 1999) .................................................................................................. 18

Atkinson Trading Co. v. Shirley,532 U.S. 645 (2001).......................................................................... 2, 10, 11, 18, 25, 32, 33, 34

Attorney’s Process & Investigation Servs., Inc. v. Sac & Fox Tribe,609 F.3d 927 (8th Cir. 2010) .................................................................................................... 12

Barton v. State,104 Idaho 338, 659 P.2d 92 (1983) .......................................................................................... 29

Big Horn Cnty. Elec. Coop., Inc. v. Adams,219 F.3d 944 ........................................................................................................... 15, 16, 18, 25

Boxx v. Long Warrior,265 F.3d 771 (9th Cir. 2001) .............................................................................................. 19, 20

Brendale v. Confederated Tribes & Bands of Yakima Nation,492 U.S. 408 (1989).......................................................................................................... 2, 9, 10

Bugenig v. Hoopa Valley Tribe,266 F.3d 1201(9th Cir. 2001) (en banc) ..................................................................................... 3

Burlington N. RR. v. Red Wolf,196 F.3d 1059 (9th Cir. 1999) .................................................................................................. 19

Buster v. Wright,135 F. 947 (1905)...................................................................................................................... 17

Dolgencorp, Inc. v. Miss. Band of Choctaw Indians,746 F.3d 167 (5th Cir. 2014) ...................................................................................................... 9

Durning v. Citibank, N.A.,950 F.2d 1419 (1991).................................................................................................................. 7

Evans v. Shoshone-Bannock Land Use Policy Comm’n,736 F.3d 1298 (9th Cir. 2013) .................................................................................................. 10


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FMC v. Shoshone-Bannock Tribes,905 F.2d 1311 (9th Cir. 1990) .................................................................................. 4, 14, 25, 34

Ford Motor Co. v. Todecheene,394 F.3d 1170 (9th Cir. 2005) .................................................................................................. 25

Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc.,715 F.3d 1196 (9th Cir. 2013) ............................................................................................ 16, 17

Johnson v. Gila River Indian Cmty.,174 F.3d 1032 (9th Cir. 1999) .................................................................................................. 14

McDonald v. Means,309 F.3d 530 (9th Cir. 2002) .................................................................................................... 18

Montana v. United States,450 U.S. 544 (1981).................................................................................. 1, 9, 11, 12, 18, 22, 34

Morris v. Hitchcock,194 U.S. 384 (1904).................................................................................................................. 17

Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,471 U.S. 845 (1985).............................................................................................................. 6, 14

Nevada v. Hicks,533 U.S. 353 (2001)............................................................................ 1, 2, 10, 11, 12, 19, 20, 21

Oliphant v. Suquamish Indian Tribe,435 U.S. 191 (1978).................................................................................................................... 9

Plains Commerce Bank v. Long Family Land & Cattle Co.,554 U.S. 316 (2008)............................................................................ 2, 9, 10, 11, 12, 18, 32, 33

Quantum Expl., Inc. v. Clark,780 F.2d 1457 (9th Cir. 1986) .................................................................................................. 28

S. Dakota v. Bourland,508 U.S. 679 (1993).................................................................................................................. 10

Shultz v. Atkins,97 Idaho 770, 554 P.2d 948 (1976) .......................................................................................... 29

Smith v. Salish Kootenai Coll.,434 F.3d 1127 (9th Cir. 2006) (en banc) ................................................................ 12, 20, 21, 22

State of Mont. Dep’t of Transp. v. King,191 F.3d 1108 (9th Cir. 1999) .................................................................................................. 19


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Stock W., Inc. v. Confederated Tribes of the Colville Reservation,873 F.2d 1221 (9th Cir. 1989) .................................................................................................. 17

Strate v. A-1 Contractors,520 U.S. 438 (1997)...................................................................................... 2, 5, 6, 9, 11, 18, 32

United States v. FMC Corp.,531 F.3d 813 (9th Cir. 2008). ............................................................................................... 7, 22

United States v. Munsingwear, Inc.,340 U.S. 36 (1950)...................................................................................................................... 7

United States v. Wheeler,435 U.S. 313 (1978).................................................................................................................... 8

Washington v. Confederated Tribes of Colville Reservation,447 U.S. 134 (1980).................................................................................................................. 18

Water Wheel Camp Recreational Area v. LaRance,642 F.3d 802 ............................................................................................................................. 16

Williams v. Lee, 358 U.S. 217 (1959) ........................................................................................... 17

Wilson v. Marchington,127 F.3d 805 (9th Cir. 1997) .................................................................................................... 19

Yellowstone Cty. v. Pease,96 F.3d 1169 (9th Cir. 1996) .................................................................................................... 19

Zidell Expls., Inc. v. Conval, Int’l, Ltd.,719 F.2d 1465 (9th Cir. 1983) .................................................................................................. 29

Other Authorities

TRIBAL CONST. art. VI, ................................................................................................................. 28


MEMORANDUM OF FMC CORPORATION IN SUPPORT OF MOTION TODENY THE TRIBES JURISDICTION OVER FMC UNDER THE FIRST EXCEPTIONTO MONTANA - 1 Client:4335082.1

INTRODUCTION

The United States Supreme Court established the general rule that Indian tribes do not

have jurisdiction over nonmember conduct taking place on an Indian reservation, especially

when the conduct occurs on land owned in fee by the nonmember. Montana v. United States,

450 U.S. 544 (1981). The first of two narrow exceptions to the general rule in Montana applies

if the tribe carries its burden of proving that the nonmember entered into a “consensual

relationship with the tribe or its members, through commercial dealing, contracts, leases, or other

arrangements.” Montana, 450 U.S. at 565 (emphasis added). The first Montana exception is

limited and permits tribal regulation only where necessary to protect tribal self-government or

control internal relations. Id. at 564. (Where nonmembers are concerned, the “exercise of tribal

power beyond what is necessary to protect tribal self-government or to control internal relations

is inconsistent with the dependent status of the tribes, and so cannot survive without express

congressional delegation.” (emphasis added). “Thus, ‘[t]ribal assertion of regulatory authority

over nonmembers must be connected to that right of the Indians to make their own laws and be

governed by them.’” Nevada v. Hicks, 533 U.S. 353, 361 (2001) (emphasis added).

The Supreme Court and the federal Courts of Appeal, including the Ninth Circuit, have

limited application of the first Montana exception to: (1) “commercial cases,” in which the

nonmember voluntarily entered into a contract with the tribe to operate a revenue generating

business on the tribal land;1 (2) “trust land cases” in which the nonmember voluntarily entered

the reservation to conduct a commercial activity on tribal land; and (3) “waiver cases” in which

the nonmember voluntarily entered the tribal courts for the purpose of litigating claims against a

1 The term “tribal land” includes lands held in trust for the tribes by the United States andfee lands owned by a tribal member.



tribal member that arose of conduct that occurred on tribal land.

In each case in which a court has held that the first Montana exception applies, the

court’s decision is premised on the fact that Indian tribes’ inherent sovereign powers include the

power to exclude or limit access of nonmembers from the reservation, and the lesser power to

regulate conduct on tribal land. Hicks, 533 U.S. at 360 (“with one minor exception, we have

never upheld under Montana the extension of tribal civil authority over nonmembers on non-

Indian land”). The “one minor exception” is Brendale v. Confederated Tribes and Bands of

Yakima Nation, 492 U.S. 408 (1989), which was decided under the second exception to

Montana’s general rule. Thus, federal courts have never held that a tribe has jurisdiction under

the first Montana exception to regulate the conduct of nonmembers on fee land within the

reservation.

In this case, the Tribes threatened to exercise their governmental powers to regulate

FMC’s conduct on fee land within the Reservation by requiring FMC to pay a permit fee of more

than $100 million per year. The Tribes claim that FMC’s offer and the Tribes’ acceptance a

$1.5 million annual permit fee in lieu of the Tribes’ threatened $100 million fee establishes a

“consensual relationship” under the first Montana exception. No federal court has ever held that

a “consensual relationship” under the first Montana exception can be based on the threatened

exercise of tribal governmental power. Such a holding would violate the Supreme Court’s

holding that the Montana exceptions are “limited ones” and cannot be construed in a manner that

would “swallow the rule,” or “severely shrink” it. Atkinson Trading Co. v. Shirley, 532 U.S.

645, 650 (2001); Strate v. A-1 Contractors, 520 U.S. 438, 458 (1997); Plains Commerce Bank v.

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



In short, application of the first Montana exception in this case would be contrary to the

decisions of the Supreme Court, the Ninth Circuit and every other federal appellate court that has

ruled on tribal jurisdiction under the first Montana exception because (a) the conduct the Tribes

seek to regulate occurs on fee land, not tribal land; and (b) the threatened exercise of tribal

governmental power cannot establish a consensual relationship under Montana.

I. BECAUSE THE TRIBAL COURTS RELIED ON THIS COURT’S VACATEDOPINION, THIS PROCEEDING IS A DE NOVO REVIEW OF THAT RULING,AND DOES NOT REQUIRE ANY DEFERENCE TO THE TRIBAL COURTS

The questions presented here are entirely legal in nature. The Tribal courts relied on this

Court’s legal determination regarding first Montana jurisdiction, and did not consider or decide

any facts regarding that question. For that reason, this Court should not defer to the Tribal courts

on the question of whether there is Tribal jurisdiction over FMC’s conduct on fee-owned land

within the borders of the Fort Hall Reservation.

A. Standard of Review.

Whether a tribal court properly exercised its jurisdiction is a question of law that is

reviewed de novo by the federal courts. The Ninth Circuit Standards of Review state:

“Whether a tribal court properly exercised its jurisdiction is a question of lawreviewed de novo.” See AT&T Corp. v. Coeur D’Alene Tribe, 295 F.3d 899, 904(9th Cir. 2002) (clarifying circuit law). Thus, a tribal court’s exercise ofjurisdiction over non-Indians is a question of federal law reviewed de novo. SeeBig Horn Cty. Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 949 (9th Cir. 2000);Montana v. Gilham, 133 F.3d 1133, 1135 (9th Cir. 1998). Decisions regardingthe scope of tribal court jurisdiction are also reviewed de novo. See Big Horn,219 F.3d at 949.2 Ninth Circuit Standards of Review, “Tribal Courts.”(http://www.ca9.uscourts.gov); see also, Water Wheel Camp Recreational Area,Inc. v. LaRance, 642 F.3d 802, 808 (9th Cir. 2011) (“A decision regarding tribalcourt jurisdiction is reviewed de novo, and factual findings are reviewed for clearerror.”).

2 Facts found by a tribal court are given deference unless they are clearly erroneous. SeeBugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1206 n.1 (9th Cir. 2001) (en banc).



In FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990), the Ninth Circuit

established that it would follow “a deferential, clearly erroneous standard of review for factual

questions” dealing with a tribal court’s determination of its own jurisdiction. Id. at 1313.

However, “federal courts are the final arbiters of federal law, and the question of tribal

jurisdiction is a federal question.” Id. at 1314. For that reason, “[f]ederal legal questions should

therefore be reviewed de novo.” Id. Thus, the standard is a “deferential, clearly erroneous

standard of review for factual questions” and a “de novo standard on legal questions.” Id. at

1313-14.

B. The District Court’s March 6, 2006 Decision Finding Tribal Jurisdiction WasError.

In September 2005, the Tribes filed a motion for clarification of RCRA Consent Decree

and an application for preliminary injunction, both asking the Court to hold that the Consent

Decree required FMC to apply for Tribal permits.3 FMC responded that the Court should deny

the Tribes’ motion and application because the Tribes are not a party to the Consent Decree.4

After FMC filed its opposition to the Tribes’ application for preliminary injunction, the Tribes

submitted 63 pages of additional exhibits.5 At the February 16, 2006 hearing, FMC argued it

was plain that the Tribes did not have jurisdiction over FMC, and even if it was not plain, the

question would require “extensive factual determination” at “a trial on the merits.”6

In spite of this, Judge Winmill’s March 6, 2006 Memorandum Decision and Order7

(“March 2006 Decision”) held that there was tribal jurisdiction:

3 See 001373-76; 001838-71.4 See 001577-600; 002293-320.5 See 002142-65; and 002382-2455.6 See 002305.7 See 002530-47.



“[t]he [RCRA] Consent Decree is another example” of a consensual agreement,because “the Tribes are an intended beneficiary of that Decree.” Id. at 002544-45(emphasis added).

In addition, Judge Winmill’s Decision held that the consensual relationship exception to

Montana is satisfied by (1) an August 11, 1997 letter from FMC’s David Buttelman to the Tribes

(the “1997 Buttelman Letter”), and (2) the May 26, 1998 and June 2, 1998 letters from FMC’s

Paul McGrath to the Tribes (the “1998 McGrath Letters”).

FMC filed a motion asking the Court to clarify or reconsider its March 2006 Decision,

explaining that Supreme Court precedent requires exhaustion of tribal remedies unless it is plain

the Tribes do not have jurisdiction.8 The Court declined to reconsider its ruling on jurisdiction,

and also directed that FMC’s arguments regarding tribal jurisdiction could not be raised in the

Tribal forums:

FMC asks the Court for an answer to the following question: “Did the Courtintend FMC to present its objections to the Tribes’ jurisdiction to the tribal forumsfor exhaustion of tribal remedies prior to a final federal court decision on thejurisdictional issue?”

The short answer is no.

Memorandum Decision & Order, dated Dec. 1, 2006, at 6 (the “December 2006 Decision”).

C. The LUPC, the Business Council and the Tribal Court Did Not Consider theFacts of First Montana Jurisdiction Despite the Requirement ThatJurisdictional Issues Much First Be Exhausted in the Tribal System.

The Tribes’ Land Use Policy Commission (“LUPC”), the Business Council and the

Tribal courts failed to make factual and legal determinations on FMC’s challenge to tribal

jurisdiction, notwithstanding long-settled U.S. Supreme Court precedent that rulings on tribal

8 See 002548, at 002553, AR2555-2556, citing Nat’l Farmers Union Ins. Cos. v. CrowTribe of Indians, 471 U.S. 845 (1985); Strate, 520 U.S. 438.



jurisdiction are to be made in the first instance in the tribal forum. SOF 64, 76, 85.9 See, e.g.,

Nat’l Farmers Union, 471 U.S. at 857; Strate, 520 U.S. at 453. Instead of making an

independent determination, the Tribal agencies relied upon the District Court’s March 2006

Decision as its only basis for the jurisdictional finding.10

In its Opinion, the Tribal Court also felt obligated to follow the March 2006 opinion of

this Court. See 004030 (“The Court [in its March 6, 2006 decision] specifically stated that FMC

was subject to jurisdiction pursuant to the rules enunciated in the case of Montana v. United

States, 450 U.S. 544 (1981).”); See Aug. 22, 2007 Hearing, at 003846 (Court: “you’re in federal

court arguing over whether or not there’s jurisdiction”); 003858 (Bacon: “this jurisdictional issue

has already been decided and should be binding on FMC and in the Tribal Court proceeding.”).

The Tribal Court stated that it “would be remiss if” it “did not follow Judge Winmill’s [sic]

guidance on” jurisdiction. Id. at 003858 (Court: “Mr. Bacon, I reread that decision, and I think

you’re exactly correct, and the Shoshone Bannock Tribal Court has jurisdiction over FMC as far

as I’m concerned, and I’m taking guidance from Judge Winmill’s decision. . . . I would be

remiss if I did not follow Judge Winmill’s guidance on that.”).

D. The Ninth Circuit Vacated the District Court Opinion.

The District Court’s holding on Tribal jurisdiction was based on a misapplication of the

RCRA Consent Decree and a misunderstanding of the facts regarding the 1997 Buttelman Letter

and the 1998 McGrath Letters. In June 2008, the Ninth Circuit corrected this error when it

reversed and vacated both the March 2006 Decision in its entirety, and remanded the case with

9 Statement of Facts(“SOF”) paragraph numbers.10 See 000351 (citing “Court’s March 6, 2006 Decision”); July 21, 2006 Business Council

Decision, at 002787 (“On March 6, 2006 federal district court Judge Lynn Winmill ruled . . .”).



instructions to dismiss the action.11 United States v. FMC Corp., 531 F.3d 813, 824 (9th Cir.

2008).

The Ninth Circuit held that the Tribes were not a “Party” to the RCRA Consent Decree,

and in addition were not a third-party beneficiary of the RCRA Consent Decree, and therefore

had no right to enforce the RCRA Consent Decree. Id. at 821. Vacated decisions have no

precedential effect, and function as if there had been no legal decision in the first place. Durning

v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (1991); United States v. Munsingwear, Inc., 340 U.S.

36, 40 (1950). Since the Court’s premature and erroneous determination of the Tribes’

jurisdiction was made in the vacated March 2006 Decision, the Court’s determination of the

Tribes’ jurisdiction was vacated as well.

E. The Tribal Court of Appeals Continued to Rely on the Vacated Decision,Even After It Was Vacated By the Ninth Circuit.

The Ninth Circuit’s reversal and vacation of the District Court’s opinion on jurisdiction,

together with the exhaustion rule, should have caused the Tribal Court of Appeals (the

“Appellate Court”) to remand the case back to the Tribal Court for findings of fact and a decision

on the jurisdictional issue. Instead, the Appellate Court continued to rely on the District Court’s

vacated decision. May 8, 2012 Findings, 006165, at 006166; 006179 (“This Court further finds

that the record supports the Trial Court’s ruling on the issue of jurisdiction over the permitting

process . . . based upon a consensual relationship after taking guidance from Judge Winmill’s

[sic] decision.”). Id. While the Appellate Court purported to make findings of fact, it did

nothing more than repeat the three bases for Tribal jurisdiction found by Judge Winmill in his

vacated 2006 Decision:

11 SOF 88-90.



The Tribes have jurisdiction over FMC under the consensual relationshipexception based on the 1998 contractual agreement, the 1998 Consent Decree,and FMC’s specific consent to Tribal jurisdiction in the 1997 Buttleman letter.12

Based upon this erroneous legal position on jurisdiction, the Court entered a judgment ordering

FMC to pay the amount of $20,519,318.41 and it also required FMC to pay the Tribes a fee of

$1.5 million each year in perpetuity.13

Even though the Tribal courts’ processes lasted from 2006 to 2014, the Tribal courts

never held any factual proceedings regarding the first Montana exception. Because the vacated

District Court decision already provided the result the Tribal courts wanted, the Tribal courts saw

no need for any further consideration of the facts.

For these reasons, no deference can be given to the factual findings of the Appellate

Court regarding the first Montana exception. Thus, the standard of review is de novo—both on

the application of federal law and the factual basis for the first Montana exception.

II. THE STRONG PRESUMPTION IS THAT INDIAN TRIBES DO NOT HAVEAUTHORITY OVER THE CONDUCT OF NONMEMBERS

A. The Supreme Court Has Established a Strong Presumption That IndianTribes Do Not Have Authority Over the Conduct or Activities ofNonmembers.

Generally, Indian tribes retain the power to govern themselves and to control relations

between members of the tribe. United States v. Wheeler, 435 U.S. 313, 326 (1978). On the other

hand, “by virtue of their dependent status,” Indian tribes have been largely divested of control

over external relations; i.e., “relations between an Indian tribe and nonmembers of the tribe.” Id.

In other words, “exercise of tribal power beyond what is necessary to protect tribal self-

12 June 26, 2012 Findings, 006262, at 006322.13 Tribal Court of Appeals Findings of Fact, Conclusions of Law, Opinion and Order,

dated June 26, 2012, at 006299, 006302, and 006324-25.



government or to control internal relations is inconsistent with the dependent status of the tribes,

and so cannot survive without express congressional delegation.” Montana, 450 U.S. at 564;

Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir. 2014).

While Indian tribes have been given power for tribal self-government and internal

relations of tribal members, attempts to project that power to authority over nonmembers are

presumptively invalid. The United States Supreme Court established the general rule that Indian

tribes do not have jurisdiction, either legislative or adjudicative, over non-member conduct or

activities taking place on an Indian reservation. Montana, 450 U.S. at 565-66 (“the inherent

sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,”

citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)); Brendale, 492 U.S. at 430

(“[T]he tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to

regulate the use of fee land” within the reservation); Strate, 520 U.S. at 445-56 (“[T]he ‘inherent

sovereign powers of an Indian tribe’—those powers a tribe enjoys apart from an express

provision by treaty or statute—‘do not extend to the activities of nonmembers of the tribe’”);

Plains Commerce, 554 U.S. at 328 (“Tribes do not, as a general matter, possess authority over

non-Indians who come within their borders.”)

In the most recent Supreme Court case on tribal jurisdiction, the Court declared that

“non-Indian fee parcels have ceased to be tribal land.”14 Plains Commerce, 554 U.S. at 328, 336.

(“Our cases have made clear that once tribal land is converted into fee simple, the tribe loses

plenary jurisdiction over it. . . . This necessarily entails ‘the loss of regulatory jurisdiction over

the use of the land by others.’” Id. at 329, quoting S. Dakota v. Bourland, 508 U.S. 679, 689

14 The term “tribal land” is used throughout this memorandum to mean land held in trustfor the tribes by the United States and land owned in fee by tribal members.



(1993). “As a general rule, then, ‘the tribe has no authority itself, by way of tribal ordinance or

actions in the tribal courts, to regulate the use of fee land.’” Plains Commerce, 554 U.S. at 329,

quoting Brendale, 492 U.S. at 430.

The Ninth Circuit has held that the general rule against tribal jurisdiction over nonIndians

“is particularly strong when the nonmember’s activity occurs on land owned in fee simple by

non-Indians—what [the Supreme Court has] called ‘non-Indian fee land.’” Evans v. Shoshone-

Bannock Land Use Policy Comm’n, 736 F.3d 1298, 1302-03 (9th Cir. 2013), quoting Plains

Commerce, 554 U.S. at 328. “[T]he Tribes’ efforts to regulate” owners of non-Indian fee owned

land “are ‘presumptively invalid.’” Id. at 1303, quoting Plains Commerce, 554 U.S. at 330.

The Indian General Allotment Act allotted significant portions of the Fort Hall

Reservation, including the FMC property, to individual members of the Tribes. In the 1910’s

and 1920’s lands comprising the FMC property were alienated and passed through sale to non-

Tribal members and eventually to FMC, which started operating its plant in 1949. Almost 100

years ago, the Tribes lost their right to occupy and exclude nonmembers from FMC’s fee lands

within the Reservation.

For this reason, the general presumption against Tribal jurisdiction over the conduct or

activities of FMC is “particularly strong.” Brendale, 492 U.S. at 422; Hicks, 533 U.S. at 354

(“Both Montana and Strate rejected tribal authority to regulate nonmembers’ activities on land

over which the tribes could not ‘assert a landowner’s right to occupy and exclude’”); Atkinson,

532 U.S. at 650 (“Indian tribe power over nonmembers on non-Indian fee land is sharply

circumscribed.”). This case involves the question of the assertion of power by the Tribes over

fee-owned lands, which is a power that has never been granted under the first Montana

exception.



B. The Tribes Have the Burden of Establishing One of Two Narrow Exceptionsto Montana’s General Rule Against Jurisdiction.

In Montana, the Supreme Court noted two possible bases for tribal jurisdiction over non-

Indian fee land. Hicks, 533 U.S. at 374. The first Montana exception provides that: “[a] tribe

may regulate, through taxation, licensing, or other means, the activities of non-members who

enter consensual relationships with the tribe or its members, through commercial dealing,

contracts, leases, or other arrangements.” Montana, 450 U.S. at 565 (emphasis added). The

second Montana exception is not applicable here, as discussed in a separate memorandum.

The burden rests on the Tribe to establish one of the two Montana exceptions. Atkinson,

532 U.S. at 654; Plains Commerce, 554 U.S. at 330. Both Montana exceptions are “limited

ones” and cannot be construed in a manner that would “swallow the rule,” or “severely shrink”

it. Atkinson, 532 U.S. at 655; Strate, 520 U.S. at 458; Plains Commerce, 554 U.S. at 330. For

example, in Atkinson, the Supreme Court held that a nonmember’s actual or potential receipt of

tribal police, fire and medical services does not create the requisite “consent” to establish the first

Montana exception because: “[i]f it did, the exception would swallow the rule.” Atkinson, 532

U.S. at 655.

These exceptions must be extremely limited, because the Supreme Court has cautioned,

tribal sovereignty “is ‘a sovereignty outside the basic structure of the Constitution.’” Plains

Commerce, 554 U.S. at 337. Also, “[t]he Bill of Rights does not apply to Indian tribes.” Id.

And Indian courts “differ from traditional American courts in a number of significant respects.”

Id., citing Hicks, 533 U.S. at 383. “And nonmembers have no part in tribal government – they

have no say in the laws and regulations that govern tribal territory.” Plains Commerce, 554 U.S.

at 337.



In order to regulate FMC’s conduct under the first Montana exception, “the regulation

must stem from the Tribes’ inherent sovereign authority to set conditions on entry, preserve

tribal self-government, or control internal relations.” Id., citing Montana, 450 U.S. at 564

(emphasis added); Attorney’s Process and Investigation Servs., Inc. v. Sac & Fox Tribe, 609 F.3d

927, 936 (8th Cir. 2010). Paramount among those interests is the right of Indian tribes to ‘‘make

their own laws and be governed by them.’’ Hicks, 533 U.S. at 361. Ultimately then, ‘‘‘[t]ribal

self-government’ is at the heart of tribal jurisdiction.’’ Smith v. Salish Kootenai Coll., 434 F.3d

1127, 1133 (9th Cir. 2006) (en banc) (quoting Montana, 450 U.S. at 564). Thus, “[t]ribal

assertion of regulatory authority over nonmembers must be connected to that right of the Indians

to make their own laws and be governed by them.” Hicks, 533 U.S. at 361.

III. THE FIRST EXCEPTION TO MONTANA IS LIMITED TO THREECATEGORIES OF CASES: (1) “COMMERCIAL CASES;” (2) “TRUST LANDCASES;” AND (3) “WAIVER CASES”

The Supreme Court and Circuit Court of Appeals cases that have found tribal jurisdiction

based on the first Montana exception fall into three categories: (1) “commercial cases,” in which

the nonmember voluntarily, and acting on its own initiative, entered into a contract with the tribe

to operate a revenue generating business on the reservation on tribal land); (2) “trust land cases”

in which the nonmember voluntarily entered the reservation to conduct a commercial activity on

tribal land; and (3) “waiver cases” in which the nonmember voluntarily entered the tribal courts

for the purpose of litigating claims against a tribal member. Since the second and third

categories clearly do not apply here, the Tribes must fit into the first category of “commercial

cases.” But that category also does not fit, because this case clearly does not involve FMC

seeking to do business with the Tribes.

In this case, the Tribes threatened to exercise its tribal governmental power to require



FMC to pay a confiscatory annual fee and FMC reached an accommodation with the Tribes that

permitted FMC to continue to operate its elemental phosphorus manufacturing plant (the

“Pocatello Plant”). The federal courts have never granted jurisdiction to a tribe under the first

Montana exception where the claimed “consensual relationship” arose out of the tribe’s assertion

of tribal government authority. A finding of jurisdiction under the first Montana exception in

this case would be unprecedented, contrary to the general rule in Montana, and contrary to the

basis and rationale upon which courts have found tribal jurisdiction under Montana’s first

exception.

A. Commercial Cases: Tribes May Regulate the Conduct of Nonmembers WhoVoluntarily Enter Into an Agreement With the Tribe to Operate a RevenueGenerating Business.

There are several cases in which nonmembers have voluntarily sought a commercial

transaction with a tribe or its members, for the commercial benefit of the nonmember. These

cases demonstrate that the first Montana exception requires a commercial relationship for the

business benefit of the nonmember.

In A&A Concrete v. White Mountain Apache Tribe, 781 F.2d 1411 (9th Cir. 1986),

Adams, nonmember, entered into a commercial contract with the White Mountain Apache Tribe

to supply concrete to a housing project to be constructed on tribal land within the Reservation

for the use of Tribal members. The Tribe brought a breach of contract action against Adams in

tribal court for supplying substandard concrete. Adams failed to defend and the tribal court

entered a default judgment. Adams then filed a complaint in federal District Court seeking to set

aside the tribal court judgment. The Tribe moved for summary judgment on several grounds,

including that Adams had failed to exhaust his remedies in tribal court. The District Court then

granted the Tribe’s motion for summary judgment. Because the case involved a commercial



contract entered into voluntarily by the nonmember for the purpose of operating a revenue

generating business on tribal land, the Ninth Circuit affirmed the District Court’s decision and

dismissed Adam’s federal court complaint, holding that Adams’ lawsuit was barred because he

failed first to exhaust his remedies in tribal court, as required by Nat’l Farmers, 471 U.S. 845.

In FMC, 905 F.2d 1311, the Ninth Circuit found that FMC voluntarily entered into

commercial real property leases of tribal lands for the purpose of mining phosphorus shale. The

Tribes sought to enforce Tribal regulations requiring additional employment of Tribal members

at the Pocatello Plant. The Ninth Circuit held that, “FMC actively engaged in commerce with

the Tribes and so has subjected itself to the civil jurisdiction of the Tribes.” Id. at 1315. Further,

the Ninth Circuit held that the Tribes’ request for greater employment of Tribal members had a

sufficient nexus to FMC’s mining leases of Tribal lands because the raw materials supplied by

the mines on Tribal lands provided 90% of the raw materials necessary to operate FMC’s

Pocatello Plant.15

In Johnson v. Gila River Indian Cmty., 174 F.3d 1032 (9th Cir. 1999), Lone Butte, a

Tribal corporation, entered into a commercial lease of tribal property with Genstar, a

nonmember, which built a rubber processing plant on the property. Johnson, a nonmember, later

acquired the rubber processing equipment located on the property. Subsequently, International

Rubber, a nonmember, entered into a new lease with Lone Butte for the use of the property and

leased the rubber processing equipment from Johnson. After International Rubber defaulted,

Lone Butte terminated the new lease, secured the premises and filed a claim in tribal court

15 The Ninth Circuit also held: “FMC is of course correct that at some point thecommercial relationship becomes so attenuated or stale that Montana’s consensual relationshiprequirement would not be met.” Id. at 1315. That is unquestionably the case here because(a) FMC discontinued its mining leases with the Tribes and tribal members several decades ago,and (b) FMC’s Pocatello Plant was shut down, disassembled and removed 15 years ago.



asserting a landlord’s lien on the rubber processing equipment for unpaid rents and damages.

Johnson specially appeared in tribal court to challenge the Court’s jurisdiction and to request

transfer to federal district court. After a trial, the tribal court held Johnson liable to Lone Butte

for back rent and damages.

Johnson then filed a notice of appeal in the tribal system. Johnson and Lone Butte both

filed pleadings and correspondence seeking action by the tribal appellate court. After two years

during which the tribal appellate court failed to respond in any way, Johnson filed a complaint in

federal district court seeking a declaratory judgment that Lone Butte lacked jurisdiction. The

district court dismissed his complaint for failure to exhaust tribal remedies. Johnson appealed to

the Ninth Circuit claiming that a two-year delay in the tribal appellate court renders his appellate

claim futile. Because the case involved a commercial contract by a nonmember to conduct a

revenue generating business on tribal land, the Ninth Circuit recognized that exhaustion of tribal

remedies was required before a jurisdictional ruling in federal court, but held that the lack of any

meaningful response to Johnson’s notice of appeal for an abnormally extensive period created

doubt that a functioning tribal appellate court existed. Accordingly, the Ninth Circuit reversed

the district court’s dismissal of Johnson’s claims and remanded to the district court for a further

inquiry into whether a sufficient tribal appellate remedy exists for the purposes of exhaustion.

In Big Horn, 219 F.3d 944, Big Horn, an electrical cooperative with approximately one

half its membership comprised of the Tribe and tribal members, operated electric transmission

and distribution systems on right-of-way easements on the Reservation.16 The Court found that

Big Horn’s voluntary agreement to provide electrical services to Tribal members from which Big

16 The court treated the right-of-way easement as fee land. While the court does not saythis expressly, in order to provide electrical service to tribal members, a portion of Big Horn’stransmission and distribution equipment would have to be on tribal land.



Horn received substantial revenues would be sufficient to create a consensual relationship. Id. at

951. But the Ninth Circuit held that, notwithstanding the consensual relationship, the first

Montana exception was not established because the Tribes’ assessment of a tax on the value of

Big Horn’s property was not Tribal regulation of a nonmember’s “conduct or activities.”

In Water Wheel, 642 F.3d 802, Water Wheel, a nonmember, entered into a thirty-two

year commercial lease of valuable tribal land on the Colorado River. The lease enabled Water

Wheel to operate a commercial marina, convenience store, bar, trailer and camping spaces from

which Water Wheel earned substantial revenues. Water Wheel failed to make the required lease

payments to the Tribes and refused to vacate the leased tribal land when the lease expired. The

Ninth Circuit held that the Tribe’s power to exclude non-Indians from tribal land, includes the

power to evict non-Indians who have voluntarily entered into commercial agreements to enter

tribal land and operate a business, and then violated their conditions of entry and trespassed on

tribal land.

In Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa Inc., 715 F.3d 1196 (9th Cir. 2013),

Grand Canyon, a nonmember, voluntarily entered into a contract with the Tribe by signing an

agreement to develop and manage the Skywalk, a tourist attraction located on tribal land, in

exchange for a fee payable to the Tribe. The contract between the Tribe and Grand Canyon

expressly provided that Grand Canyon would operate the project “in compliance with all

applicable . . . [Tribal] . . . laws, ordinances, rules and regulations.” Id. at 1206. Grand Canyon

and the Tribes became engaged in a dispute over Grand Canyon’s management of the Skywalk

property. The Ninth Circuit held that, just as in Water Wheel, the Tribes’ inherent sovereign

power to limit or exclude access to tribal land included the lesser power to regulate, and that

Grand Canyon’s voluntary entry into a commercial agreement with the Tribes satisfies the first



Montana exception. The Ninth Circuit expressly held: “Water Wheel is instructive because,

there, just as here, it was access to the valuable tribal land that was the essential basis for the

agreement.” Id. at 1204 (emphasis added). See also Stock W., Inc. v. Confederated Tribes of the

Colville Reservation, 873 F.2d 1221 (9th Cir. 1989) (affirming the District Court decision

holding that where the nonmember entered into a contract to build and operate a sawmill on

tribal lands using tribal timber resources, the federal court was correct to dismiss the action on

comity grounds in order to permit exhaustion of tribal remedies).

In each of the foregoing cases, the nonmember affirmatively and on its own initiative,

sought out an agreement with the Tribes for the purpose of operating a revenue generating

business on tribal land. The Tribes did not exercise tribal governmental powers, or otherwise

threaten, demand or coerce the nonmember to enter into the commercial agreement with the

Tribes. Moreover, all the cases allowing jurisdiction involved nonmember conduct on tribal

land with respect to which the tribe’s sovereign powers included the right to limit or exclude

access by the nonmember.

B. Trust Land Cases: Tribes May Regulate the Conduct of Nonmembers WhoVoluntarily Enter the Reservation to Engage in Commercial Activity onTribal Lands.

The cases listed in Montana as illustrative of the first Montana exception involve tribal

regulation of non-Indians entering the Indian reservation to engage in commercial economic

activity on tribal land. Williams v. Lee, 358 U.S. 217 (1959) (declaring tribal jurisdiction over

lawsuit arising out of sales transactions between nonmember and tribal member on tribal land);

Morris v. Hitchcock, 194 U.S. 384 (1904) (upheld tribal permit tax on nonmember owned

livestock grazing on tribal land leased by the non-member); Buster v. Wright, 135 F. 947 (1905)

(upholding tribal permit tax on nonmembers for privilege of conducting commercial business on



tribal land); Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134 (1980)

(acknowledging tribal jurisdiction over on-reservation cigarette sales to nonmembers on tribal

land). Thus, the holding in each of these cases flows directly from the fact that the inherent

sovereign powers of an Indian tribe include the power to regulate nonmember activity on tribal

land.

Ninth Circuit cases also consistently hold that tribal jurisdiction under the first Montana

exception turns on whether the conduct that is the subject of tribal regulation or a lawsuit

occurred on tribal land. McDonald v. Means, 309 F.3d 530 (9th Cir. 2002) (cause of action

arose out of accident on tribal road; tribal court had jurisdiction); Allstate Indem. Co. v. Stump,

191 F.3d 1071 (9th Cir. 1999) (cause of action arose out of accident on tribal roads; remanded

for exhaustion of tribal determination of jurisdiction). The rationale for all of these cases is

based on the tribe’s sovereign power to exclude nonmembers from the reservation, and the

included lesser powers to regulate conduct on tribal lands and set the conditions for entry.

Federal courts consistently deny tribal jurisdiction under the first Montana exception

where the subject of the tribal regulation or lawsuit occurred on lands owned in fee within the

Reservation. Montana, 450 U.S. 544 (the tribes do not have jurisdiction to regulate hunting and

fishing by nonmembers on fee land); Strate, 520 U.S. 438 (tribal courts do not have jurisdiction

to entertain a civil action arising out of an accident that occurred on a federally granted right-of-

way17 over reservation land); Atkinson, 532 U.S. 645 (the tribes do not have jurisdiction to

impose a hotel tax on a commercial business located on fee land); Plains Commerce, 554 U.S.

316 (the tribes do not have jurisdiction over the sale of fee land within the reservation); Boxx v.

17 Federally granted rights-of-way are treated as fee land within the Reservation. Strate,520 U.S. 438; Big Horn, 219 F.3d 944.



Long Warrior, 265 F.3d 771 (9th Cir. 2001) (cause of action arose on non-Indian fee land within

the reservation; no jurisdiction in tribal courts); Burlington N. RR. v. Red Wolf, 196 F.3d 1059

(9th Cir. 1999) (cause of action arose on railroad right-of-way within the reservation; no

jurisdiction in tribal courts); State of Mont. Dep’t of Transp. v. King, 191 F.3d 1108 (9th Cir.

1999) (cause of action arose on state highway within reservation; no need to exhaust claims in

tribal courts); Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997) (cause of action arose on

U.S. highway within reservation; judgment of tribal court not entitled to recognition in U.S.

courts); Yellowstone Cty. v. Pease, 96 F.3d 1169 (9th Cir. 1996) (county taxed fee land within

reservation; no jurisdiction in tribal courts to enjoin the county).

To qualify for jurisdiction under the first Montana exception, the conduct at issue must

arise from tribal land. In Hicks, 533 U.S. 353, the Supreme Court pointed out that nonmember

conduct on fee land, “has been virtually conclusive of the absence of tribal civil jurisdiction.”

(emphasis added). The Court also wrote: “with one minor exception, we have never upheld

under Montana the extension of tribal civil authority over nonmembers on non-Indian land.” Id.

at 360.

Beyond this requirement, the first Montana exception cases also require a commercial

relationship, rather than just a consensual relationship. In Hicks, the Supreme Court made the

distinction between commercial relationships and governmental relationships:

Montana recognized an exception to this rule for tribal regulation of ‘the activitiesof nonmembers who enter consensual relationships with the tribe or itsmembers, through commercial dealing, contracts, leases, or otherarrangements.’ 450 U.S. at 565. Though the wardens in this case ‘consensually’obtained a warrant from the tribal court before searching respondent’s home andyard, we do not think this qualifies as an ‘other arrangement’ within the meaningof this passage. Read in context, an ‘other arrangement’ is clearly anotherprivate consensual relationship, from which the official actions at issue in thiscase are far removed.”



Id. at 359 n.3 (emphasis added).

The Ninth Circuit has also held that a personal relationship between “social

acquaintances” was not enough for first Montana jurisdiction. The Ninth Circuit explained:

Under Montana’s first exception, a relationship is of the qualifying kind only if itis both consensual and entered into through commercial dealing, contracts, leases,or other arrangements. To the extent that the relationship cannot be neatlycategorized as one entered through commercial dealing, contracts, or leases,but is instead characterized as one entered through “other arrangements,” weconclude that such arrangements also must be of a commercial nature.

Boxx, 265 F.3d at 77618 (emphasis added).

Thus, the first Montana exception applies only to a “private consensual relationship,”

whereby the nonmember voluntarily seeks to conduct commercial business on tribal land

benefitting both sides. Based on these decisions, there is no room for asserting that mandating

compliance with tribal regulations is anything like the consensual “commercial relationships”

allowed under the first Montana exception.

C. Waiver Cases: Tribal Courts Have Jurisdiction Over Cases Where aNonmember Knowingly Enters the Tribal Court to File Claims Against aTribal Member Regarding Conduct That Occurred on Tribal Land.

Courts have recognized the jurisdiction of tribal courts under the first Montana exception

in cases where a nonmember knowingly enters tribal courts for the purpose of filing suit against

18 In Smith, 434 F.3d 1127, the Ninth Circuit allowed jurisdiction where a student of thecollege brought suit against the college in tribal court. In that case, the Ninth Circuit describedBoxx as holding that “a non-Indian’s ‘socially consensual’ relationship with an Indian cannotserve as the basis for tribal jurisdiction.” Id. at 1138. However, the opinion also included afootnote that stated that it disapproved of the broader statement that consensual relationshipsmust be commercial in nature, while also affirming the holding of Boxx. Smith, 434 F.3d at 1137n.4. But a comparison of the Supreme Court’s statements in Hicks with those of the NinthCircuit panel in Boxx demonstrates the requirement that an arrangement be of a “commercialnature” is taken directly from the Supreme Court’s Montana jurisprudence. Hicks, 533 U.S. at359 n. 3 (“Read in context, an “other arrangement” is clearly another private consensualrelationship, from which the official actions at issue in this case are far removed.”) (emphasisadded).



a tribal member and the conduct that is the subject of the suit occurred on tribal land.

In Smith, 434 F.3d 1127, Smith was enrolled as a student at Salish Kootenai College

(“SKC”), but he was not a member of the Confederated Salish and Kootenai Tribes. Smith was

injured in a traffic accident on a U.S. highway within the Reservation while driving a truck

owned by SKC as part of a course in which he was enrolled. Smith voluntarily elected to file

claims against SKC, a tribal entity,19 in tribal court seeking damages and to litigate those claims

to judgment in the tribal court. Following an unfavorable verdict, Smith argued for the first time

that the tribal court did not have jurisdiction.

The Ninth Circuit held that the “[f]irst, and most important, is the party status of the

nonmember; that is, whether the nonmember party is a plaintiff or a defendant. Id. at 1131. The

Court found that “where the nonmembers are the plaintiffs, and the claims arise out of

commercial activities within the reservation, the tribal courts may exercise civil jurisdiction.” Id.

at 1132 (internal citation omitted; emphasis in opinion); and that “it has ‘never held that a tribal

court had jurisdiction over a nonmember defendant.’” Id. (quoting Hicks, 533 U.S. at 358 n.2)

(emphasis added).

At the same time, the Ninth Circuit held that any consensual relationship Smith had with

SKC as a result of his student status was too remote to serve as the basis for Tribal jurisdiction.

Thus, Smith’s attendance at the Tribal college and his injury while driving a truck on the

Reservation as part of a SKC course were not enough to establish the first Montana exception.

Id. at 1136. Rather, the Ninth Circuit’s finding of a consensual relationship under the first

Montana exception was based solely on Smith’s voluntary decision to file claims for damages

19 SKC was not a tribal “member” but the court found that “SKC is a tribal entity and, forpurposes of tribal court jurisdiction, may be treated as though it were a tribal ‘member.’” Id. at1135.



against a tribal member in tribal court and pursue his claims to a final judgment: “We hold that a

nonmember who knowingly enters tribal courts for the purpose of filing suit against a tribal

member has, by the act of filing his claims, entered into a ‘consensual relationship’ with the tribe

within the meaning of Montana.”20 Id. at 1140.

The Ninth Circuit’s decision in Smith also is based on the fact that Smith’s claims “arose

out of activities conducted or controlled by a tribal entity on tribal lands.” Id. at 1135 (emphasis

added). Thus, as in Water Wheel and Grand Canyon, the fact that the conduct occurred on tribal

land, not fee land, was pivotal to the court’s decision.

IV. THE NINTH CIRCUIT RULING ESTABLISHES THAT THE RCRA CONSENTDECREE CANNOT FORM THE BASIS FOR TRIBAL JURISDICTION

A. The Ninth Circuit’s Decision Eliminates the Consent Decree as a Basis forJurisdiction.

In the vacated March 2006 Decision, this Court ruled that “[t]he consensual agreement

exception of Montana is satisfied by . . . the Consent Decree.” 002545. This conclusion was

based on the Court’s holding that “the Tribes are an intended beneficiary of” the Consent Decree.

002544. But the Ninth Circuit firmly rejected this holding, explaining that the Tribes were not

intended beneficiaries, and were only incidental third party beneficiaries who “lack standing to

enforce the Consent Decree.” FMC Corp., 531 F.3d at 815.

The Ninth Circuit’s decision and vacation of the March 2006 Decision in its entirety

eliminates the RCRA Consent Decree as a basis for a finding of tribal jurisdiction. Since the

Consent Decree cannot be enforced by the Tribes, it cannot be the basis for a finding that FMC

“enter[ed into a] consensual relationship[] with the tribe or its members, through commercial

dealing, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565 (emphasis added).

20 The Smith court could just as easily have based its ruling against Smith on waiver.



V. THE 1997 AND 1998 CORRESPONDENCE BETWEEN FMC AND THE TRIBESDO NOT QUALIFY AS CONSENSUAL RELATIONSHIPS UNDER THE FIRSTMONTANA EXCEPTION

Because the Ninth Circuit’s ruling rejects the Consent Decree as a basis, the Tribes’

claim for first Montana jurisdiction hangs on only two items of correspondence, taken out of

their factual context: (1) the 1997 Buttelman Letter, and (2) the 1998 McGrath Letters.

A. A Consensual Relationship Cannot Be Based on the Buttelman Letter.

The 1997 Buttelman Letter occurred only after other correspondence directed to FMC in

which the Tribes demanded that FMC apply for Tribal building permits to construct Ponds 17-19

to be used to manage process waste waters. Because other ponds were nearing full capacity,

FMC could not continue to operate the Plant without constructing the new Ponds. 21 FMC’s

initial letter to the Tribes submitted an application for a building permit for Ponds 17-19, but

expressly stated that “FMC does not consent to the jurisdiction of the tribes over zoning or waste

regulation, nor does it intend to create a ‘consensual relationship.’”22 The LUPC responded that

the Tribes would not accept FMC’s building permit application unless FMC provided a consent

to the Tribes’ regulatory jurisdiction. SOF 35-36.

Faced with the choice of shutting down the Plant or contesting to Tribal jurisdiction in

the Tribal and federal courts, the 1997 Buttleman Letter offered that FMC would consent to the

enforcement of a specific Tribal land use ordinance, which provided for only submission of a

building permit application and a special use permit application, and payment of a $10 permit

application fee. FMC’s August 11, 1997 letter to the Tribes expressly states:

21 See 001471-78.22 FMC and the Tribes had a long history of agreements in which FMC expressly

disclaimed Tribal jurisdiction. See, e.g., the NOSAP Litigation Settlement Agreement, whichexpressly provided that FMC reserved its position that the Tribes do not have jurisdiction overFMC activities on its fee land within the borders of the Reservation. See 001627 and 001402.



Through the submittal of the Tribal ‘Building Permit Application’ and the Tribal‘Use Permit Application’ for Ponds 17, 18, and 19, FMC Corporation isconsenting to the jurisdiction of the Shoshone-Bannock Tribes with regard to thezoning and permitting requirements as specified in the current Fort Hall LandUse Operative Policy Guidelines.

(Emphasis added). 23

Less than two weeks after FMC delivered the 1997 Buttelman letter, the LUPC advised

FMC that it had adopted amended Guidelines that would impose new, more onerous

requirements, including a fee that would amount to $180 million per year. 24 FMC could not

afford to continue to operate the Plant if it were required to pay the $180 million annual permit

fee. Id. On September 11, 1997, the LUPC informed FMC that the building permits for the

three ponds were granted, but that the use permit was not approved. 25 Thus, by adopting new

regulations imposing a $180 million fee and refusing to grant the use permit, the Tribes rejected

FMC’s offer to consent to the “current” August 11 Operative Policy Guidelines.

Shortly after this, FMC explained to the Tribes that (1) “FMC filed its applications

expressly subject to the Land Use Policy Guidelines in effect on August 11, 1997;” (2) “FMC

had no notice of the proposed fees at the time it submitted these applications;” and

(3) “Therefore, application of the proposed permit fees to Ponds 17, 18, and 19 would constitute

retroactive application in violation of Due Process protections.” 26

FMC submitted building permit applications for Ponds 17-19 and paid the $10 permit

application fee required by the Land Use Policy Operative Guidelines current at the time of the

1997 Buttelman Letter. The Ponds were built, operated and later closed in compliance with

23 See 001470.24 See 001608.25 See 002167-2178.26 Id. at 002169-70, 002178.



standards set by the USEPA after the Plant discontinued operations in 2001. Any “consent”

evidenced by the 1997 Buttelman Letter is limited to submission of the building permit

application and payment of the $10 building permit application fee; and therefore cannot serve to

establish a consensual relationship that gives the Tribes jurisdiction to require FMC to pay

$1.5 million per year.

Montana’s first 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. Must be a “fairly

direct link” between the asserted commercial relationship and the assertion of tribal jurisdiction.

Ford Motor Co. v. Todecheene, 394 F.3d 1170, 1179 (9th Cir. 2005); see also Big Horn, 219

F.3d at 951 (holding that Montana’s first exception does not grant “unlimited regulatory or

adjudicative jurisdiction,” but that there must be a clear nexus between the agreement and the

activity the tribe seeks to regulate). Not only must there be a direct subject matter nexus between

the relationship and the assertion of jurisdiction, but there must also be a temporal nexus. As the

Ninth Circuit has made clear, “at some point the commercial relationship becomes so attenuated

or stale that Montana’s consensual relationship requirement would not be met.” FMC, 905 F.2d

at 1315. As the Supreme Court stated so aptly in Atkinson, “[a] nonmember’s consensual

relationship in one area thus does not trigger tribal civil authority in another – it is not ‘in for a

penny, in for a Pound.’” 532 U.S. at 656.

The 1997 Buttelman Letter fails each of the nexus requirements. Even if the Letter could

support a consensual relationship—which it cannot for the same reasons the 1998 McGrath

Letters do not establish a qualifying consensual relationship. The Letters consented only to the

“current” Guidelines, which specify a $10 permit fee. The Letters expressly do not consent to

the 1998 Title V Amendments, the $1.5 million fee, or totally different permits.



There is no clear, direct nexus between the perfunctory, ministerial task of applying for a

building permit and paying a $10 building permit fee and the Tribes’ demand that FMC pay $1.5

million per year in perpetuity. Nor is there any temporal nexus. Construction of the Ponds under

the building permit was completed almost two decades ago. The first Montana exception does

not include a “bait and switch” function, whereby consent to one tribal ordinance establishes

consent to any ordinance of any nature that the Tribes choose to adopt.

B. A Consensual Relationship Cannot Be Based on the 1998 McGrath Letters.

In 1998, FMC and the USEPA were engaged in settlement negotiations that culminated

in the RCRA Consent Decree. The Tribes attended the negotiation sessions in Seattle.27 In April

1998, the Tribes advised FMC that the LUPC had adopted an Amendment to Chapter V of the

Land Use Policy Guidelines (“the Chapter V Amendments”), which included a fee schedule that,

if applied to FMC’s Plant, would result in $100 million annual fee. 28 The Tribes asserted that

they could enforce these regulations against FMC. FMC was confronted with the choice of

(a) shutting down the Plant, or (b) contesting to the Tribes’ jurisdiction in both the Tribal courts

and the federal court,29 or (c) attempting to negotiate a lower annual fee with the Tribes. FMC’s

only rational choice was to negotiate and accept a lower permit fee.

Negotiations between FMC and the LUPC resulted in an agreement whereby FMC would

pay a fee of $1.5 million per year, plus a $1 million startup grant in lieu of the fee schedule in the

Chapter V Amendments; and the LUPC would amend the Tribes’ Hazardous Waste Act to

27 The Tribes were invited to attend in recognition of the United States trustresponsibilities to Indian tribes.

28 See 002610.29 FMC believed if it continued to operate the Plant without reaching some

accommodation with the Tribes, the Tribes might attempt to force a shutdown of the Plant. Thisthreat was real because, in past years, Tribal authorities had blocked access to the Plant at therailroad line, public intersections and interstate highways. See 001605.



expressly include FMC’s fixed fee. SOF 38-40. McGrath confirmed the agreement in his

May 26, 1998 letter to the Tribes:

We have received your letter of May 19, 1998, concerning the permitting at theFMC facility of ponds 17, 18 and 19. We appreciate your agreeing to the fixedfee proposal that we discussed, which we understand will apply during the timethese ponds are in operation. On the basis as originally stated in my letter to youof October 30, 1997, we accept the permit, and we therefore intend to make thepayments of $2.5 million on June 1, 1998, and $1.5 million on June 1 in thefollowing years. 30

In return, the Tribes promised to adopt a “Hazardous Waste Act” to ensure FMC’s $1.5 million

fee would not change:

As we explained during out meeting, the Chapter V Amendments to the OperativeGuidelines is only temporary for this year. Accordingly, within the year, theHazardous Waste Program will be drafting a Hazardous Waste Act that willinclude either specific classes or exemptions to insure that FMC’s fixed fee of$1.5 million remains the same in the future. As part of the process, the FMCCorporation can participate in the public hearing and comment period.

May 19, 1998 McGrath Letter (emphasis added.)

By May 1998, EPA and FMC had agreed on RCRA Consent Decree terms that required

FMC to construct a “LDR Treatment System” and to cease use of the ponds by no later than

May 16, 2002. 000775-76. During a RCRA Consent Decree negotiation session at the end of

May, Jeanette Wolfley, a Tribal attorney, expressed concern31 to McGrath and Bob Fields (FMC)

that McGrath’s May 26 letter could be read as limiting the $1.5 million fee to the use of ponds

17-19,32 such that the permit fee would no longer apply when the LDR Treatment System

30 See AR001480-81 (Sept. 19, 2005 Declaration of T. Galloway (“Galloway Decl.”)Ex. G).

31 “As you may be aware, this permit fee was negotiated between the parties during thesame time that ongoing negotiations were occurring with the Environmental Protection Agencyon the RCRA Consent Decree.” 002136-37.

32 The numbering of the ponds was later changed from ponds 17, 18 and 19, to ponds 17,18A and 18B.



eliminated FMC’s use of the ponds. McGrath agreed to send Wolfley a letter confirming that the

permit fee would be paid after the ponds were closed and FMC started treating wastes in the

LDR Treatment System. SOF 41. McGrath’s June 2, 1998 letter to Wolfley stated:

Dear Jeanette:

In Seattle last week you raised a question about my letter to the Commission ofMay 26, 1998. The language in paragraph one of the letter seemed to limit thepermit to ponds 17-19. As I indicated to you, that language was too narrow, andindeed it is our understanding that the permit covers the plant and that the $1.5million annual fee would continue to be paid for the future even if the use ofponds 17-19 was terminated in the next several years.

(Emphasis added.)33

As promised, FMC paid the $1.5 million permit fee each year from 1998 through June 1,

2001, at which time the Plant permanently ceased operations. 34 As of Plant shutdown, the Tribes

still had not adopted a Hazardous Waste Act to permanently fix FMC’s fee, as they had promised

to do.35 FMC did not pay the fee after the Plant shutdown because, as McGrath’s June 2 letter

clearly states, the permit fee “covers the plant,” rather than the FMC property itself.

The Chapter V Amendments in effect at the time of the 1998 McGrath Letters applied

only to the “disposal” of wastes. The Amendments limited the definition of “disposal” to “the

discharge, deposit, injection, dumping, spilling or placing hazardous waste into or on any land

. . .” All of these words involve the act of disposal itself, not the existence of the disposal unit.

33 See 002116.34 Id. at 002114-5; 002117-20; 002132-33.35 Only the Business Council has the authority to adopt such an Act, subject to review

by the Secretary of the Interior. See TRIBAL CONST. art. VI § l (h) & (I). Until the HazardousWaste Act was adopted by the Council and approved by the Secretary, any agreement betweenFMC and the LUPC was not binding. Cf., Quantum Expl., Inc. v. Clark, 780 F.2d 1457, 1459(9th Cir. 1986) (holding that an Indian tribe could unilaterally rescind a proposed joint ventureagreement with a mineral developer before the Secretary of the Interior approved the agreement.“[L]anguage requiring governmental approval of Indian agreements… has been interpreted tomean that the agreements simply are invalid absent the requisite approval.”). See also 007075.



SOF 43. When the Plant ceased operations, FMC ceased generating any wastes to be

“disposed,” and, as a result the permit fee no longer applied.36 Thus, FMC completed payment of

the permit fees it promised to pay in the 1998 McGrath Letters.

The 1998 McGrath Letters also did not consent to any form of Tribal jurisdiction.

SOF 44. As the exchange of the 1997 Buttelman Letter proves, the Tribes knew how to demand

consent to jurisdiction and FMC knew how to give consent. But LUPC’s May 19, 1998 Letter to

FMC did not demand, or even mention, consent to Tribal jurisdiction. Similarly, the 1998

McGrath Letters fail to mention any consent to Tribal jurisdiction.37 SOF 45.

C. The Buttelman and McGrath Letters Do Not Establish a ConsensualRelationship Under the First Montana Exception.

Neither the 1997 Buttelman Letter nor the 1998 McGrath Letters establish a consensual

relationship under the first Montana exception. The McGrath and Buttelman Letters lack every

element the federal courts have required to establish a consensual relationship exception to

Montana’s general rule that tribes do not have jurisdiction to regulate the conduct or activities of

36 The Tribes may argue that the permit fee continued to apply after Plant shutdownbecause FMC was “storing” wastes. But the Amendments’ definition of “storage” rules out thisinterpretation. “Storage” is defined to mean “the containment of hazardous waste either on atemporary basis or period of years, in such manner not to constitute disposal of such hazardouswastes.” Because EPA approved capping and closing the ponds in place, they are not“temporary” storage units.

37 The 1998 correspondence between the LUPC and FMC was not a contract, but rather,as found by Tribal Judge McGuire: “an agreement to incorporate the ‘permitting fees’ into thestatutory framework of the ordinance.” 004038. Even if the letter exchange were treated as acontract, the contract was terminable at will. The Tribal Court of Appeals ruled that Idahocommon law applied in this case, under diversity principles. 006517. Idaho law clearly providesthat a contract with no duration term is terminable at will upon reasonable notice. Shultz v.Atkins, 97 Idaho 770, 775, 554 P.2d 948, 953 (1976). Contract law does not allow perpetualcontracts that have no ending, unless such an intent is clearly and expressly made. Barton v.State, 104 Idaho 338, 340, 659 P.2d 92, 94 (1983); Zidell Expls., Inc. v. Conval, Int’l, Ltd., 719F.2d 1465, 1474 (9th Cir. 1983). By letter dated May 23, 2002, FMC expressly gave atermination notice to the Tribes in which FMC stated it would not pay the $1.5 million fee due toPlant shutdown.



a nonmember on the Reservation.

As explained above, the cases in which federal courts have found a “consensual

relationship” that meets the requirements of the first Montana exception fall into three

categories: “commercial cases,” “trust land cases” and “waiver cases.” None of these apply:

• First, FMC’s agreement to pay a permit fee is not a “commercial case.”FMC did not voluntarily enter into a contract or agreement with the Tribesto operate a revenue generating business on the Reservation. As theowner of fee land within the Reservation, FMC had the right to build andoperate its Plant, as it did from 1949 to 2001 without any such contractwith, or permission from, the Tribes.

• Second, FMC is not a “trust land” case. No portion of FMC’s Plant islocated on tribal lands. The Tribes’ inherent sovereign power to limit orexclude access from tribal land, and the lesser power to regulatenonmember conduct on tribal land, does not apply to FMC’s fee land.

• Third, FMC is not a “waiver case.” FMC did not voluntarily enter theTribal courts to bring claims against tribal members arising out of conductthat had occurred on tribal land.

FMC’s payment of a fee also falls outside the first Montana exception because, like the

ad valorem tax in Big Horn which was assessed on the value of Big Horn’s transmission

equipment, the $1.5 million permit fee is assessed on wastes present on FMC’s fee lands. As

was the case in Big Horn, the Tribes are not regulating the “conduct or activities” of FMC.

Finally, FMC’s payment of the permit fee is not a “private consensual relationship” or a

“commercial relationship,” as defined in Hicks, Boxx and the other first Montana cases. FMC

did not agree to pay the permit fee because FMC desired to do business with the Tribes. FMC

agreed only because the Tribes asserted governmental authority to require the payment of fees

and threatened actions which could have catastrophic consequences if FMC refused to reach an

accommodation with the Tribes. Montana’s first exception does not allow for tribal jurisdiction

based on a Tribes’ assertion of regulatory authority over fee land. And compliance with tribal



regulations is not a basis for jurisdiction under Montana. Montana allows jurisdiction only

based on “consensual relationships,” and not on any sort of compelled compliance with tribal

authority.

As explained above, the LUPC’s proposed regulations included a fee schedule based on

the volume of wastes “disposed” annually. FMC calculated its annual fee would be $100 million

or more. Given the enormous financial losses that FMC would suffer by shutting down the

Plant38 and the very substantial costs and risks of a long battle over Tribal jurisdiction,39 FMC’s

“choice” was no choice at all. SOF 31-39

Judge Winmill’s Memorandum Decision and Order, dated May 17, 2006 (“May 17 Mem.

Decision”) accurately describes the type of choice FMC faced in 1998 when it elected to resolve

the Tribes’ demands by paying the $1.5 million fee. In 2006, the Tribes once again gave FMC

the choice between agreeing to pay the $1.5 million annual fees for the years 2002 into

perpetuity, or refuse and pay a fee that could exceed $100 million. Judge Winmill stated:

… FMC was compelled by the Court’s decision to seek Tribal permits, and itcomplied with that direction. The Tribes responded by granting a permit on thecondition that FMC elect either (1) to ratify the Agreement and pay a $1.5 millionfee, or (2) reject the Agreement and pay a weight-based fee that could exceed$100 million. The Tribes required FMC to make its election on or before May 10,2006. …

The election mandated by the Tribes will prejudice the rights of FMC regardless

38 FMC was the largest employer in the Pocatello area. Shutting down the plant wouldhave immediate, severe consequences for FMC’s employees and the Pocatello economy.Shutdown would breach the Plant’s long term supply contracts and would damage FMC’sdownstream businesses that relied on the Plant for supply of elemental phosphorus. FMC’sultimate decision to shut down the Plant was caused by events after 1998, including deterioratingmarket conditions worldwide and huge spikes in power prices that made the Plant uneconomical.

39 Because FMC is now engaged in jurisdictional litigation with the Tribes does notchange the fact that, at the time FMC agreed to pay the $1.5 million permit fee, FMC reasonablybelieved doing so would avoid litigation with the Tribes. That, in fact, was the result for eightyears from 1998 until 2006 when the Tribes’ demands forced FMC into this litigation.



of which option FMC elects. If FMC elects the lower fee, it must ratify theAgreement and hence abandon its argument – pursued here and at the Circuit –that it is not subject to the Agreement. If instead, FMC elects the higher fee, itwill pay an astronomical sum that would stagger even the largest corporationwith no assurance that it could recover the money if it eventually prevails onappeal.

The Tribes point out that they did not have to offer FMC the lower fee alternative,implying that they are doing FMC a favor. That might be true if the large feecould be stayed or recovered. However, that is apparently not the case. By notallowing the large fee to be stayed or recovered, the Tribes’ election“opportunity” actually steers FMC into electing the small fee and abandoningits legal challenge in this case. That is not what the Court intended when itgranted the Tribes’ motion to clarify.

May 17 Mem. Decision at 1-3.

The Appellate Court ruled that tribal jurisdiction can be established under the first

Montana exception based on FMC’s agreement to pay a fee to avoid the potentially catastrophic

consequences presented by the Tribes’ demands. No federal court has found that a concession to

tribal governmental demands can constitute a “consensual relationship” under Montana. If

permitted to stand, that ruling would give Indian tribes the ability to use their internal

governmental power to coerce “consensual relationships” in nearly any circumstance, and

thereby create tribal jurisdiction in violation of Montana’s general rule that tribes do not have

jurisdiction over the conduct of nonmembers, especially on fee land. Such a result would violate

the Supreme Court admonition that the Montana exceptions are “limited” and cannot be

construed in a manner that would “swallow the rule,” or “severely shrink” it. Atkinson, 532 U.S.

at 655; Strate, 520 U.S. at 458; Plains Commerce, 554 U.S. at 330.

D. The Buttelman and McGrath Letters Are Limited in Scope.

An essential component of the consent analysis must be the scope and duration of any

alleged consent. The Supreme Court has held, “when it comes to tribal regulatory authority, it is



not ‘in for a penny, in for a Pound.’” Plains Commerce, 554 U.S. 316 (quoting Atkinson, 532

U.S. at 656). In Plains Commerce, even a long history of on-reservation commercial

relationships between a Tribal member-owned company and a non-Tribal bank did not lead to a

ruling that the bank could be regulated on matters outside of those transactions.

Even assuming that the Buttelman and McGrath Letters establish a consensual

relationship between FMC and the Tribes—which they clearly do not—the scope and duration of

that relationship is limited by the express terms of the Letters and the Tribal ordinances in effect

at the time the Letters were written. As described above, any consent provided by the 1997

Buttelman Letter is limited to submission of building and special use permit applications and

payment of the $10 permit fee. FMC submitted those applications and paid the permit fee in

1997 – two decades ago.

The 1998 McGrath Letters are limited to payment of the $1.0 million startup fee and the

$1.5 million annual fee during the time the Plant was operating. As McGrath wrote in his

June 2, 1998 Letter: “the permit covers the plant . . . .” In addition, the 1998 McGrath Letters

must be read in light of the Chapter V Guidelines as they existed in June 1998. The fact that

the Tribes adopted new ordinances more than a decade after the 1998 McGrath Letters is not

and cannot be a basis for permit fee.40

The Supreme Court’s decisions in Atkinson and Plains Commerce require narrowly-

tailored consent, limited both in subject matter and duration. FMC’s acquiescence to pay a

permit fee for waste generation and “disposal” does not allow the Tribes to charge a permit fee,

40 The Tribes adopted the 2010 Land Use Policy Ordinance (“LUPO”) and the 2009Waste Management Act, which purport to regulate the “treatment, disposal, and storage” ofwaste.



in perpetuity, for what the Tribes now characterize as waste “storage” on the FMC Property.

Consent to one tribal regulation does not establish global consent to any future regulation a tribe

may decide to adopt.

At some point, either by the passage of time or dramatically changed circumstances (or

both) a consensual relationship becomes “so attenuated or stale that the Montana consensual

relationship requirement would not be met.” FMC, 905 F.2d at 1315. That is certainly the

case here. LUPO and the Chapter V Guidelines are no longer in effect and have been displaced

by materially different Tribal ordinances. The FMC Plant has been shut down, dismantled and

Plant equipment and structures have been removed from FMC’s fee land. Two decades have

passed since the Buttleman and McGrath Letters were written and the circumstances under

which the Letters were written have changed dramatically. Even assuming, for the purpose of

argument, that FMC’s response to the Tribes’ assertion of governmental authority in 1998

established a “consensual relationship,” that “consent” no longer exists under the first Montana

exception. Atkinson, 532 U.S. at 656.

VI. CONCLUSION

The evidence in the record before this Court does not prove that FMC Corporation

entered into a “consensual relationship with the Shoshone-Bannock Tribes or their members,

through commercial dealing, contracts, leases, or other arrangements.” Montana, 450 U.S. at

565. The Court should issue a declaratory judgment ruling that the Shoshone-Bannock Tribes do

not have jurisdiction over FMC Corporation under the first exception to Montana. The Court

should also permanently enjoin the Shoshone-Bannock Tribes from taking any action to enforce



the Tribal Court of Appeals’ Judgment, demand the annual payments, or assert regulatory

jurisdiction over the FMC Corporation.

DATED this 13th day of January, 2017.

SUMMIT LAW GROUP PLLC

By /s/Ralph H. PalumboRalph H. PalumboAttorneys for FMC Corporation

MOFFATT, THOMAS, BARRETT, ROCK &FIELDS, CHARTERED

By/s/Lee RadfordLee RadfordAttorneys for FMC Corporation



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 13th day of January, 2017, I filed the foregoingMEMORANDUM OF FMC CORPORATION IN SUPPORT OF MOTION TO DENYENFORCEMENT FOR LACK OF CONSENT JURISDICTION electronically through theCM/ECF system, which caused the following parties or counsel to be served by electronicmeans, as more fully reflected on the Notice of Electronic Filing:

David M. [email protected]

Douglas B. L. [email protected]

Frank S. [email protected]

Maureen L. [email protected]

Paul C. Echo [email protected]

Ralph H. [email protected]

William F. [email protected]

/s/Lee RadfordLee Radford


moffatt, thomas, barrett, rock ields hartered ummit … · 2017-09-29 · case no. 4:14-cv-489-cwd...

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