Anne Minard
A worker displays phosphate ore at a still-operating plant near Soda Springs, Idaho, about 50 miles southeast of the Fort Hall Indian Reservation. The FMC plant, which operated on the reservation for 52 years until it shut down in 2001, mixed phosphate ore like this with silica and coke to make elemental phosphorous, a product useful in a wide variety of products including matches and Coca-Cola.

The Wound That Won’t Heal: The World’s Hunger for More Phosphorus

Anne Minard
9/27/13

 

The Shoshone-Bannock tribes are hardly alone when it comes to dealing with the repercussions of the world’s hunger for phosphorus. Residents of central Florida are also facing extensive pollution from phosphate fertilizer production, as are people in Louisiana, North Carolina and Tennessee. On a global scale, some scientists argue that phosphorus from agricultural runoff is just as much to blame as nitrogen when it comes to the ominous oceanic “dead zones” at the mouths of rivers, where nutrient overloads cause unsustainable blooms of algae and de-oxygenate the water for fish.

RELATED: The Wound That Won’t Heal: Idaho’s Phosphate Problem

The phosphate footprint is likely to expand. Because when it comes down to it, the world’s hunt for phosphorous is just getting real. Without it, agriculture – indeed, life as we know it – would crash. And we’re running low.

Even in Idaho, this reality has already hit home. A new Monsanto mine 50 miles southeast of Fort Hall, the Blackfoot Bridge Mine, cost $55 million to open because of the safeguards that needed to be put in place to protect a nearby watershed that is already contaminated with selenium from past mining operations. Monsanto execs passed up this same mine 10 years ago because it wasn’t cost-effective to use it. As worldwide prices rise, it becomes more lucrative to go back for the harder-to-reach supplies. The lower quality supplies are also beginning to look more appealing, even if they do carry higher levels of contaminants, like cadmium, that will eventually pollute future plant sites even more than historic ones.

The United States, with 14 percent of the world’s phosphate supply, has begun to import it from other countries. China boasts the largest reserves, owing partly to its practice of hoarding the stuff. But the world’s most promising in-ground stores are in Morocco – a distressingly unstable country, politically speaking, to be holding the future of the human population in its hills. Scientists disagree about how many years global phosphorus supplies will last, but many estimates fall between 50 and 100 years.

Water has collected in one of many old, unreclaimed mining pits in the 20-mile-long Gay Mine on the Fort Hall Indian Reservation. The yellow material at the edges is made of microbes that subsist on high levels of the contaminant selenium. (Anne Minard)

A handful of forward-thinking researchers, many of them in Europe, are beginning to discuss future sources. Recycling appears to be a viable solution to peak phosphorus – from the composting of agriculture waste, to the recapture of fertilizer runoff, even the re-utilization of livestock and human waste.

Meanwhile, the Shoshone-Bannock tribes continue to try to fix the unsavory impacts of the industry at home.

Attorney Paul Echo Hawk believes it’s all but a moot point that the EPA is supposed to clean up the land, based on its trust responsibility to the tribes. “The EPA has clearly breached its trust responsibility to the tribes in this case,” he said. “Unfortunately, the Supreme Court has made it difficult for tribes to sue for breach.”

With Echo Hawk and long-time Tribal Attorney William Bacon at the helm, the tribes have been fighting on several fronts to assert their own jurisdiction over FMC. They’re working to collect on a $1.5 million-a-year waste storage payment that FMC stopped paying in 2001. They’re struggling with the EPA to propel reclamation of the Gay Mine. And they’re eagerly awaiting the results of a health study of the Shoshone-Bannock people which, if it’s done right, could make a case that FMC impacted the tribes’ health, and pave the way for compensation.

The most active case stems from a 1998 agreement between FMC and the tribes, wherein FMC agreed to pay $1.5 million a year as a land use permit fee for storing waste on the reservation. The company paid until 2001 – and then abruptly stopped, claiming that the shutdown of the plant negated the debt even though the waste remained. And so in 2006, the tribal attorneys went after the back payments in federal court. They chose to sue on the grounds that the tribes, by rights, should be able to enforce a 1999 consent decree between the EPA and FMC, which includes a requirement that FMC apply for – and honor – tribal permits. Initially, the Idaho Federal District Court agreed. The court ruled that the tribes do have jurisdiction over FMC, and that FMC should be compelled to pay the fees, and awarded the $9 million then at issue. But FMC appealed to the 9th Circuit Court of Appeals, which threw out the lower court’s ruling based on the fact that the tribe is actually not a party to the consent decree between the EPA and FMC, and can’t go to court to enforce its terms.

By focusing on the relationship of the tribes to the consent decree, the appeals court avoided the issue of whether the tribes have a basic, sovereign right to enforce environmental regulations against non-Indians on its land. The lower court had found that the tribes did have a right, based on court precedent that allow a tribe to enforce such regulations against a party if they’re in a relationship with that party – as in, say, a plant site lease.

The 1981 court case that set that rule, Montana v. the United States, also said a tribe can enforce such regulations if the party is engaging in “conduct that threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

The tribal attorneys want the federal courts to recognize that both provisions apply – FMC is in a consensual relationship with the Shoshone-Bannock tribes, and its conduct negatively affects their members – and so, consent decree or no consent decree, FMC should have to obey Shoshone-Bannock environmental regulations. So ever since the federal appeals court’s 2008 ruling, they’ve been establishing a record of those facts in the tribal courts.

Initially, Shoshone-Bannock Tribal Court Judge David Maguire found in favor of FMC in 2007 and 2008. That judge is no longer with the tribe. In May of last year, the Tribal Appellate Court reversed his ruling. The higher court also sent the case back down to the trial court for a thorough hearing on the second Montana exception. That trial is set to begin in November.

The tribal ruling ought to be final, says Echo Hawk, and FMC should be obligated to abide by it. But he suspects that FMC will fight any disagreeable findings by starting fresh through the federal courts when the case has made its way through the tribal courts.

By now, the original $9 million debt has more than doubled. “We have separate lawsuits filed, for fees from 2008 to the present that we have agreed to put on hold pending the outcome of this case,” Echo Hawk said. “The parties have pretty much agreed that the first judgment will largely dictate the outcome of the subsequent lawsuits.”

Cleanup at the Gay Mine also hangs in the balance. There, the EPA has ordered an initial investigation into the contamination of the mine, and the two responsible companies – J.R. Simplot and FMC – have agreed to complete it. But the attorneys for the companies and the tribes have been hung up for six months on incidental expenses, like landowner access fees and the $10,000 it would cost to maintain the gravel access road during the influx of cleanup traffic.

Finally, as part of its 1999 consent decree with the EPA, FMC must help pay for a health study of the Shoshone-Bannock people to determine which, if any, of their reported health problems including asthma, cancers, and auto-immune conditions are related to past operations at FMC. Echo Hawk considers the study to have great potential to demonstrate health impacts that would allow the tribal attorneys to go after compensation for sickened tribal members. Both Echo Hawk and Bacon, however, have expressed frustration at research methodology that has come about as the result of much wrangling between FMC and the tribes.

For example, while there are many ways to obtain data about the incidence of health problems, FMC insisted that surveys be sent out to tribal households across the reservation. Several thousand surveys went out last year, and despite a vocal campaign to get them back, only about 300 surveys – about 9 percent – were returned.

The surveys are a sore spot for Bacon, who sees them as a study method designed to fail. “If you think you're going to send out a health study and they'll send it back,” he says, “you don't know anything about tribal culture.”

RELATED: The Wound That Won’t Heal: EPA’s Band-Aid on Idaho Phosphate Pollution

RELATED: The Wound That Won’t Heal: Idaho’s Far-Reaching Phosphate Pollution

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