Shoshone-Bannock Tribes of the Fort Hall Reservation v. Daniel-Davis
| Decision Date | 31 March 2023 |
| Docket Number | 4:20-cv-00553-BLW |
| Parties | SHOSHONE-BANNOCK TRIBES OF THE FORT HALL RESERVATION, Plaintiff, v. LAURA DANIEL-DAVIS, Principal Deputy Assistant Secretary for Land and Minerals Management; UNITED STATES DEPARTMENT OF THE INTERIOR; and UNITED STATES BUREAU OF LAND MANAGEMENT, Defendants, and J.R. SIMPLOT COMPANY Defendant-Intervenor. |
| Court | U.S. District Court — District of Idaho |
B Lynn Winmill U.S. District Court Judge
This case involves a challenge to the Blackrock Land Exchange between the United States and Defendant-Intervenor J.R Simplot Company in southeast Idaho. Plaintiffs Shoshone-Bannock Tribes allege that BLM's decision and analysis approving the exchange is arbitrary and capricious in violation of the National Environmental Protection Act, the Federal Land Policy Management Act, the 1900 Act, and the Administrative Procedures Act. Before the Court are the parties' cross-motions for summary judgment. Dkts. 37 60, 61. For the reasons set forth below, the Court grants in part and denies in part the motions.
In 1868, the Fort Bridger Treaty established the Fort Hall Reservation as the permanent home of the Shoshone-Bannock Tribes, a federally recognized Indian Tribe. AR0055983. Thirty years later, the Tribes agreed to cede a significant portion of the Reservation to the federal government. Act of June 6, 1900, 31 Stat. 672, 672-76 (Art. I) (1900); AR0039297-301. Congress subsequently ratified the 1898 Cession Agreement in the 1900 Act, which incorporates the Agreement in its entirety. Id.
As part of the 1898 Agreement, the Tribes retain rights to cut timber, pasture livestock, hunt, and fish on ceded lands that “remain part of the public domain.” Act of June 6, 1900, 31 Stat. 672, 674 (Art. IV) (1900). Moreover, Section 5 of the 1900 Act delineates specific, limited processes by which the federal government can remove the ceded lands from the public domain. For example, the Act provides that the ceded lands “shall be subject to disposal under the homestead, townsite, stone and timber, and mining laws of the United States only ....”. Id. at 676 (emphasis added). In addition, “no purchaser shall be permitted in any manner to purchase more than one hundred and sixty acres” of ceded lands. Finally, ceded lands within five miles of Pocatello “shall be sold at public auction.” Id.
In the 1940s, two phosphate processing facilities-Simplot's Don Plant and the neighboring FMC plant-opened next to and on the Fort Hall Reservation. AR0029561. The Don Plant manufactures phosphoric acid through a process that creates a phosphogypsum byproduct containing radioactive materials. AR0029570. At the Don Plant, phosphogypsum waste is mixed with water and pumped into a storage-disposal facility called a gypstack. Id. The phosphogypsum solids settle in ponds at the top of the gypstack and the slurry water is then pumped back into the processing facility. AR0029571. Gradually, the gypsum deposits accrue, filling the gypstack. Id.
Both gypstacks had an (almost literally) fatal design flaw: they were unlined. Consequently, over the years, the gypstacks released contaminates such as arsenic, cadmium, lead, mercury, nickel, and nitrate into the groundwater. AR0029968. The contaminated groundwater discharged into the Portneuf River, which flowed past the Don Plant and onto the Fort Hall Reservation. Id; Shoshone-Bannock Tribes of the Fort Hall Reservation v. U.S. Dep't of Interior, No. 4:10-cv-004-BLW, 2011 U.S. Dist. LEXIS 48492, at *3 (D. Idaho May 3, 2011).
EPA detected pollution from the phosphate plants in the late 1980s. Id. Because EPA found contaminants of concern in the groundwater, soil, and vegetation, it ultimately made 2,530 acres of land-including the Simplot and FMC phosphate facilities-part of a superfund site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In 1990, the Eastern Michaud Flats (EMF) superfund site was listed on the National Priority List. Id. In 1998, the agency finalized its decision designating the superfund site. AR0029561.
Then the cleanup started.
In 2001, EPA issued a consent decree and statement of work specific to the area around the Don Plant. AR0029562. The statement of work required Simplot to install a groundwater extraction system to remove groundwater contaminated by the unlined stack. Id.
In 2017, pursuant to a 2010 amendment to the 2001 consent decree and a 2008 voluntary consent order with the Idaho Department of Environmental Quality (IDEQ), Simplot installed a synthetic liner on top of the existing gypstack to reduce groundwater contamination. Id. The voluntary consent order also requires the inclusion of a liner in the design of any new gypstack built at the Don Plant or other lands acquired for that purpose. Id.
In 2015 EPA and DOJ reached a settlement with Simplot to resolve alleged Clean Air Act violations at five Simplot facilities, including the Don Plant. Id. Simplot agreed to pay a civil penalty and install pollution controls and monitoring systems to reduce public health risks associated with sulfur dioxide emissions. Id.
In 2016, IDEQ and Simplot agreed to a consent order to address excess fluoride found in forage within a 1-to-2-mile radius of the Don Plant. Id. Simplot has to reduce its fluoride emissions by 2026. It can either replace the existing reclaim cooling towers with a low-emission alternative or incorporate other measures that reduce fluoride emissions by more than 50 percent from the cooling towers. Id.
The Don Plant continues operating, but its longevity depends on the capacity of its gypstack. Without a method of storing waste, manufacturing comes to a halt. And here, Simplot faces a major dilemma. At current production rates, the Don Plant's gypstack-which now spreads out over nearly 500 acres-is projected to reach design capacity by 2031. AR0029548; AR0053590.
For a quarter century, Simplot has tried to extend the Don Plant's operational life by acquiring adjacent BLM land and building new gypstacks. AR0029545. Critically, the suitable land now belongs to the Federal Government because it was ceded by the Tribes in the 1898 Agreement.
Simplot first proposed solving its storage problem through a land exchange in 1994. See 1994 Proposal AR0062706 ( ). Although BLM and EPA took steps towards approving the exchange, the process stalled pending EPA's EMF Superfund Site ROD. AR0063084-86; AR0063121; AR0063513.
Simplot came back to the proposal in 2004. AR0063513. This time, BLM approved the exchange, issuing an Environmental Assessment and a Finding of No Significant Impact. AR0064177- AR0064182. The Tribes challenged that administrative decision. In 2011, this Court granted summary judgment in their favor. The Court remanded the decision to BLM because the EA violated NEPA and the project required an EIS.
BLM revisited the land exchange once more in 2019. BLM posted a Notice of Intent to prepare an EIS in the Federal Register on May 20, 2019 and provided a 45-day scoping period, during which BLM held two public scoping meetings. AR0029563. BLM prepared a draft EIS, which it made available for comment in late 2019. Id. The final EIS was published in May 2020. Id.
The EIS considered the proposed action, two action alternatives, and a no action alternative. In August 2020, DOI issued the ROD approving Alternative B and authorizing the exchange of 713.67 acres of Federal land for 666.46 acres of non-Federal land along with 160 acres of non-Federal land in the form of voluntary mitigation Parcel A. AR0039169-84.
In December 2020, Simplot and BLM finalized the exchange and transferred the deeds. AR0031352-53; AR0031357-59; AR0031360-62; AR0065394-95. Simplot acquired federal land that is adjacent to the Don Plant and which the Tribes ceded in the 1898 Agreement. AR0039210. In exchange, the federal government acquired land near the Chinese Peak-Blackrock Canyon area. Id. That same month, the Tribes filed this suit.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc). Because this is an administrative record review case, the Court may grant summary judgment to either party based upon a review of the administrative record. Id.
A federal agency's compliance with environmental laws is reviewed under the Administrative Procedure Act (APA). 5 U.S.C. § 706; see Ctr. for Biological Diversity v U.S. Dep't of Interior, 581 F.3d 1063, 1070 (9th Cir. 2009); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003). Under the APA, the reviewing court must set aside the agency's decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the agency has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm'n, 92 F.3d 940, 942 (...
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