FMC Corp. officials are expressing concerns about a plan by the Shoshone-Bannock Tribes to amend tribal land use ordinances for fear the changes contain excessive penalties that could hurt their company and stifle economic growth.
Tribal officials, however, say the amendments are needed to protect Fort Hall Reservation land and the environment in Southeast Idaho, plus the health and welfare of reservation residents. The tribes have proposed revising their existing land use ordinance, which has been in effect since 1977, and its waste management act, in effect since 2005.
Approved by the Fort Hall Business Council, the amendments will be submitted to U.S. Department of Interior’s Bureau of Indian Affairs for approval. The tribes also have proposed a new subsurface sewage disposal ordinance for the business council to approve.
Maureen Mitchell, an FMC attorney, says FMC is concerned about the possibility of extreme penalties and how the ordinances could impact the redevelopment value of FMC’s industrial property west of Pocatello on the Eastern Michaud Flats Superfund site shared with the J.R. Simplot Co.’s phosphate fertilizer plant.
FMC shut down its adjacent elemental phosphorus plant in December 2001 and subsequently tore down the complex. Mitchell said the language of the proposed tribal ordinances is often inconsistent and very vague, threatening company attempts to bring the property back into productive use. A zoning map is also blurry and illegible, she said.
Some companies that have considered developing the property have abandoned their plans because of existing and proposed tribal ordinances, she said. Tribal attorney Mark EchoHawk said the tribes are unaware of any businesses that have decided against locating in the area because of the ordinances.
Concerns over tribal regulations prompted Hoku Materials Inc. to move construction of a polysilicon plant from Pocatello Regional Airport land within reservation boundaries to private land within city limits, said former Pocatello Mayor Roger Chase, who now works for the city as a consultant specializing in tribal matters.
Mitchell said the amended ordinance could circumvent established court rulings by requiring people to obtain permits to access the reservation. In effect, they would enter into a consensual relationship with the Shoshone-Bannocks, which could subject them to tribal jurisdiction.
One of the main concerns is proposed wording that would declare the reservation “closed,” which EchoHawk said is a legal term used to determine whether tribes can regulate matters on their reservations. If the Fort Hall Reservation is considered legally open, then FMC would not be liable for its legacy of extensive pollution, he said, stressing permits have been required on the reservation for years.
Former FMC Plant Manager Paul Yochum, now a consultant for the company, said broad penalty provisions contained in the amended ordinances especially worry FMC. In 2000, FMC had to pay a $10,000 fee to the Shoshone-Bannocks after tribal police stopped a truck hauling oversized pipe from FMC to a purified acid plant in Soda Springs.
New ordinances imposing unknown fees are an unpredictable risk for businesses fearful of fees or other imposed penalties, Yochum said. Agreeing the tribes have a right to protect their citizens and natural resources, Mitchell said there is a large difference between what the Shoshone-Bannock Tribes are trying to do and what has been done by other tribes.