Case 1:21-cv-00093-REB Document 1 Filed 03/01/21 Page 1 of 7
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`William F. Bacon, General Counsel (ISB # 2766)
`SHOSHONE-BANNOCK TRIBES
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`P.O. Box 306
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`Fort Hall, Idaho 83203
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`Telephone: (208) 478-3822
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`Facsimile: (208) 237-9736
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`bbacon@sbtribes.com
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`Jill Elise Grant (DCB # 358306)*
`Jill Grant & Associates, LLP
`1319 F Street NW, Suite 300
`Washington, D.C. 20004
`Telephone: (202) 821-1950
`Facsimile: (202) 459-9558
`jgrant@jillgrantlaw.com
`*Applying to appear pro hac vice
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`Attorneys for Plaintiff Shoshone-Bannock Tribes
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
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`____________________________________
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`SHOSHONE-BANNOCK TRIBES OF
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`THE FORT HALL RESERVATION ,
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`Plaintiff,
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`P4 PRODUCTION, L.L.C.,
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`Defendant.
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`____________________________________)
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`Civil Action No.
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`(Related case: United States v. P4
`Production, L.L.C.,
`No. 4:21-cv-00092-CWD)
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`COMPLAINT
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`The Shoshone-Bannock Tribes of the Fort Hall Reservation (“Tribes”), a federally
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`recognized Indian tribe, by authority of the Fort Hall Business Council and through the
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`undersigned attorneys, and at the request of the Shoshone-Bannock Tribes Environmental Waste
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`Management Program, file this complaint and allege as follows:
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`William F. Bacon, General Counsel (ISB # 2766)
`SHOSHONE-BANNOCK TRIBES
`
`P.O. Box 306
`
`
`
`
`Fort Hall, Idaho 83203
`
`
`
`Telephone: (208) 478-3822
`
`
`
`Facsimile: (208) 237-9736
`
`
`
`bbacon@sbtribes.com
`
`
`
`
`Jill Elise Grant (DCB # 358306)*
`Jill Grant & Associates, LLP
`1319 F Street NW, Suite 300
`Washington, D.C. 20004
`Telephone: (202) 821-1950
`Facsimile: (202) 459-9558
`jgrant@jillgrantlaw.com
`*Applying to appear pro hac vice
`
`
`Attorneys for Plaintiff Shoshone-Bannock Tribes
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
`
`
`____________________________________
`
`
`
`
`
`
`)
`SHOSHONE-BANNOCK TRIBES OF
`)
`THE FORT HALL RESERVATION ,
`)
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`
`
`
`
`
`)
`
`
`
`Plaintiff,
`
`)
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`v.
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`
`)
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`)
`P4 PRODUCTION, L.L.C.,
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`)
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`)
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`Defendant.
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`)
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`____________________________________)
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`Civil Action No.
`
`(Related case: United States v. P4
`Production, L.L.C.,
`No. 4:21-cv-00092-CWD)
`
`COMPLAINT
`
`
`The Shoshone-Bannock Tribes of the Fort Hall Reservation (“Tribes”), a federally
`
`recognized Indian tribe, by authority of the Fort Hall Business Council and through the
`
`undersigned attorneys, and at the request of the Shoshone-Bannock Tribes Environmental Waste
`
`Management Program, file this complaint and allege as follows:
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`
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`Case 1:21-cv-00093-REB Document 1 Filed 03/01/21 Page 2 of 7
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought under Section 107 of the Comprehensive
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`Environmental Response, Compensation, and Liability Act (“CERCLA”), as amended,
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`42 U.S.C. § 9607, for recovery of costs the Tribes has incurred and will incur in connection with
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`response actions to releases and threatened releases of hazardous substances into the
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`environment at or from the Ballard Mine Site (“Site”) located in Caribou County, Idaho.
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`JURISDICTION AND VENUE
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`2.
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`This Court has jurisdiction over the subject matter of this action and over the
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`parties under 28 U.S.C. §§ 1331 and 1362 and Sections 107 and 113(b) of CERCLA, 42 U.S.C.
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`§§ 9607 and 9613(b).
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`3.
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`Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) and Section
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`113(b) of CERCLA, 42 U.S.C. § 9613(b), because the releases or threatened releases of
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`hazardous substances that gave rise to this claim occurred in this district, and because the Site is
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`located in this district.
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`PARTIES
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`4.
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`Plaintiff Shoshone-Bannock Tribes is a federally recognized Indian tribe residing
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`on the Fort Hall Reservation, which consists of approximately 544,000 acres of land in
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`southeastern Idaho.
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`5.
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`Defendant P4 Production, L.L.C. (“Defendant”) is a company formed in Delaware
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`and registered to do business in the State of Idaho, and a wholly owned subsidiary of the
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`Monsanto Company, which is a subsidiary of Bayer AG.
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`6.
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`Defendant is a “person” as defined in Section 101(21) of CERCLA, 42 U.S.C.
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`§ 9601(21).
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`2
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`Case 1:21-cv-00093-REB Document 1 Filed 03/01/21 Page 3 of 7
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`7.
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`Defendant currently owns the Site.
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`STATUTORY BACKGROUND
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`8.
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`CERCLA was enacted in 1980 to provide a comprehensive governmental
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`mechanism for abating releases and threatened releases of hazardous substances and other
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`pollutants and contaminants, and for funding the costs of such abatement and related
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`enforcement activities, which are known as “response” actions, 42 U.S.C. §§ 9604(a), 9601(25).
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`9.
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`Section 104(a)(1) of CERCLA, 42 U.S.C. § 9604(a)(1), provides:
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`Whenever (A) any hazardous substance is released or there is a
`substantial threat of such a release into the environment, or (B)
`there is a release or substantial threat of release into the
`environment of any pollutant or contaminant which may present an
`imminent and substantial danger to the public health or welfare,
`the President is authorized to act, consistent with the national
`contingency plan, to remove or arrange for the removal of, and
`provide for remedial action relating to such hazardous substance,
`pollutant, or contaminant at any time (including its removal from
`any contaminated natural resource), or take any other response
`measure consistent with the national contingency plan which the
`President deems necessary to protect the public health or welfare
`or the environment.
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`Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), provides in pertinent part:
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`10.
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`Notwithstanding any other provision or rule of law, and subject
`only to the defenses set forth in subsection (b) of this Section –
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`(1)
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`the owner and operator of a vessel or a facility
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` * *
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`shall be liable for –
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`(A)
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`all costs of removal or remedial action incurred by the
`United States Government or a State or an Indian tribe not
`inconsistent with the National Contingency Plan . . . .
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`Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), provides: “In any such
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`11.
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`action described in this subsection [an initial action for recovery of the costs referred to in
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`3
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`Case 1:21-cv-00093-REB Document 1 Filed 03/01/21 Page 4 of 7
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`section 9607], the court shall enter a declaratory judgment on liability for response costs or
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`damages that will be binding on any subsequent action or actions to recover further response
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`costs or damages.”
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`GENERAL ALLEGATIONS
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`12.
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`The Site is a former open-pit phosphate mine located in the Phosphate Resource
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`Area of southeastern Idaho. The Site is located approximately 13 miles north of Soda Springs,
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`Idaho, in Caribou County. It is just north of the Blackfoot River, which flows northwest,
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`eventually forming the northern boundary of the Fort Hall Reservation.
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`13.
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`The Site is within the aboriginal territory of the Tribes and the Tribes have treaty
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`rights on unoccupied federal lands in the vicinity of the Site for hunting, fishing, and gathering.
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`A 40‐acre Bureau of Land Management (BLM) parcel where the Tribes exercise treaty rights is
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`located about 1 mile southeast of the Site.
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`14.
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`To manage cleanup operations of the Site, EPA has divided response actions for
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`the Site into portions referred to as “Operable Units.”
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`15.
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`On September 24, 2019, EPA issued a Record of Decision for Operable Unit 1
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`that called for, among other things, an engineered cover system over more than 500 acres of the
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`Site where wastes are left in place, a series of permeable reactive barriers to intercept and treat
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`contaminated groundwater, and wetland treatment cells to treat contaminated residual seeps and
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`springs.
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`16.
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`The Tribes have been acting as a Support Agency at the Site. In this role, the
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`Tribes have provided a Support Agency Coordinator or Project Manager to furnish necessary
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`data to EPA, reviewed response data and documents, and provided other assistance requested by
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`EPA’s Remedial Project Manager.
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`4
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`Case 1:21-cv-00093-REB Document 1 Filed 03/01/21 Page 5 of 7
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`17.
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`The Site is a “facility” as defined in Section 101(9) of CERCLA, 42 U.S.C.
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`§ 9601(9).
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`18.
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`There has been a “release” or a “threatened release” of “hazardous substances,”
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`including selenium and heavy metals, into the “environment” at or from the Site, as those terms
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`are defined in Section 101 of CERCLA, 42 U.S.C. § 9601.
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`19.
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`In undertaking response actions to address the release or threat of release of
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`hazardous substances at the Site, the Tribes have incurred and will continue to incur “response
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`costs” as defined in Section 101(25) of CERCLA, 42 U.S.C. § 9601(25). Response costs that the
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`Tribes have incurred to date with respect to the Site have not been fully reimbursed. These
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`response costs are not inconsistent with the National Contingency Plan promulgated pursuant to
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`Section 105 of CERCLA, 42 U.S.C. § 9605, and codified at 40 C.F.R. Part 300.
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`CLAIM FOR RELIEF
`Cost Recovery Under CERCLA Section 107
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`Paragraphs 1 through 19 are re-alleged and incorporated herein by reference.
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`Defendant owns the Site, which is a facility, within the meaning of Section
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`20.
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`21.
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`107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1).
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`22.
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`Hazardous substances have been released at and from the Facility into the
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`environment within the meaning of Sections 101 and 107 of CERCLA, 42 U.S.C. §§ 9601, 9607.
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`23.
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`The Shoshone-Bannock Tribes are an “Indian tribe” within the meaning of
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`Section 101(36) of CERCLA, 42 U.S.C. § 9601(36).
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`24.
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`To protect the public health, welfare and the environment from the actual or
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`threatened release of hazardous substances, the Tribes, including the Environmental Waste
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`Management Program and their contractors, have taken response actions within the meaning of
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`5
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`Case 1:21-cv-00093-REB Document 1 Filed 03/01/21 Page 6 of 7
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`CERCLA Section 101(25), 42 U.S.C. § 9601(25), and have incurred response costs not
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`inconsistent with the National Contingency Plan (“NCP”), 40 C.F.R. Part 300.
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`25.
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`Defendant is therefore liable under Section 107(a)(1) and 113(g)(2) of CERCLA,
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`42 U.S.C. §§ 9607(a)(1), 9613(g)(2), for all costs incurred and to be incurred by the Tribes in
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`response to releases and threatened releases of hazardous substances at and from the Site that are
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`not inconsistent with the NCP.
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`WHEREFORE, Plaintiff respectfully requests that this Court:
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`PRAYER FOR RELIEF
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`A.
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`Enter judgment in favor of Plaintiff and against the Defendant, jointly and
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`severally, under Section 107(a)(4)(A) of CERCLA, 42 U.S.C. § 9607(a)(4)(A), for unreimbursed
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`response costs incurred by the Tribes relating to the Site, including enforcement costs and
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`prejudgment interest;
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`B.
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`Enter a declaratory judgment on Defendant’s liability that will be binding in any
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`subsequent action for further response costs, pursuant to Section 113(g)(2) of CERCLA,
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`42 U.S.C. § 9613(g)(2); and
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`C.
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`Grant such other and further relief as the Court deems just and proper.
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`Dated March 1, 2021
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`Respectfully submitted,
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`/s/ William F. Bacon
`William F. Bacon, General Counsel (ISB # 2766)
`SHOSHONE-BANNOCK TRIBES
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`P.O. Box 306
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`
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`Fort Hall, Idaho 83203
`
`
`
`Telephone: (208) 478-3822
`
`
`
`Facsimile: (208) 237-9736
`
`
`
`bbacon@sbtribes.com
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`6
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`Case 1:21-cv-00093-REB Document 1 Filed 03/01/21 Page 7 of 7
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`Jill Elise Grant (DCB # 358306)*
`Jill Grant & Associates, LLP
`1319 F Street NW, Suite 300
`Washington, D.C. 20004
`Telephone: (202) 821-1950
`Facsimile: (202) 459-9558
`jgrant@jillgrantlaw.com
`*Applying to appear pro hac vice
`
`
`Attorneys for Plaintiff Shoshone-Bannock Tribes
`
`
`
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`7
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