The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
The Court has before it cross-motions for summary judgment. The Court heard oral argument on April 25, 2011, and took the motions under advisement. For the reasons expressed below, the Court will grant the motion filed by the plaintiff Shoshone-Bannock Tribes and deny the motions filed by the BLM and Simplot.
In the 1940s, Simplot and FMC corporation built phosphate processing facilities about two miles northwest of the City of Pocatello. The Simplot plant is known as the Don plant. Both plants produced phosphogypsum, a solid waste by-product of the manufacturing process. The phosphogypsum is primarily gypsum and phosphorus, and includes contaminates such as arsenic, low-level radionuclides, selenium, zinc, cadmium, vanadium, fluoride, sodium, potassium, chloride, nitrates, ammonia, and sulfate. AR 335-36.
This phosphogypsum waste from the Simplot plant is pumped as a slurry into a "gyp-stack," a storage facility 240 feet tall that spreads out over 400 acres. Id. 336. By 2007, it contained 66 million tons of phosphogypsum waste. Id.
The Simplot gyp-stack is not lined, and the slurry of phosphogypsum has leached over the years into the groundwater. AR 1391. The groundwater moves generally north-northeast under the gyp-stack, and discharges to springs and to the Portneuf River. Id. The Portneuf River flows past the Simplot plant and onto the Fort Hall Indian Reservation through an area known as "the Bottoms" where a majority of Shoshone-Bannock traditional and ceremonial activities occur, including fishing and gathering of native plants. See Exhibit A, Declaration of Prouty at p. 9.
In 1976, the Idaho Department of Health and Welfare found elevated levels of arsenic, lead, and cadmium in monitoring wells down-gradient from the two plants. AR 1390. In the summer of 1987, the EPA detected arsenic, cadmium, and selenium in monitoring wells in the deep confined aquifer that runs under the area. AR 321. The EPA also discovered heavy metals in the sediments of the gyp-stack. Id. In addition, elevated contaminate levels were found in soils both on-site and off-site. AR 1391. In all, 2,530 acres of land surrounding the plants were found to have "contamination levels of concern." Id.
The culmination of all these studies came in 1990 when the area of the two plants was declared a Superfund Cleanup Site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). AR 321. It is referred to as the Eastern Michaud Flat Superfund Site (EMF Site). Id.
The dilemma for Simplot -- then and now -- is that the Don plant continues to generate waste that needs to be stored somewhere. In 1996, Simplot was projecting that its existing gyp-stack had a life expectancy of only another 8 to 10 years. AR 2521. A new gyp-stack, to be economical, would have to be built close to the plant. AR 413. But that meant building a new waste storage facility on or close by a Superfund Site that was created by the storage of that very same waste.
In its search for a new gyp-stack location, Simplot focused on a parcel of canyon land owned by the BLM just south of the plant. On April 29, 1994, Simplot submitted a letter to the BLM proposing a land exchange to acquire that BLM canyon land in exchange for land owned by Simplot in the Blackrock and Caddy Canyon areas approximately nine (9) miles southeast of Pocatello. AR 2417.
The land that Simplot sought to obtain from the BLM -- referred to as the "selected land" -- had a steep and mountainous terrain, and wrapped around the east and south sides of Simplot's existing property. AR 319. About 140 acres of the selected land lies within the boundaries of the EMF Site, and the remainder adjoins it. AR 322. All of the selected land lies within the Fort Hall Reservation "ceded area." AR 324. The Tribes retain all rights on those ceded lands remaining in public ownership for wood gathering, livestock grazing, hunting, and harvesting. AR 2521. These rights, along with the duties imposed by the Pocatello Resource Management Plan and the trust obligation the Government owes to the Tribes, obligate the BLM to ensure that any land exchange is "closely coordinated with the Tribes." AR 317.
To obtain this BLM land, Simplot offered land it purchased specifically for the exchange, land that is important mule deer winter range. This land -- referred to as the Blackrock property -- "supports considerably more deer in the winter than the [selected land]." AR 325. The BLM considers the Blackrock land to have "superior resources" for both wildlife and recreation, and it contains prehistoric sites and artifacts. AR 321. If the land exchange was completed, the BLM would manage the Blackrock land, holding it in trust for the Tribes. AR 332. The Tribes would have rights for wood gathering, livestock grazing, hunting, and harvesting on those lands. Id.
Simplot stated its intention to use the BLM land to expand the gyp-stack. In a letter to the BLM, under a paragraph labeled "Intended Use," Simplot wrote:
Simplot seeks to acquire this BLM land as a permanent storage area for the gypsum produced as a by-product in its phosphate fertilizer manufacturing process. Simplot utilizes the land it owns immediately adjacent to the north boundary of this BLM land for gypsum storage.
On January 3, 1995, Simplot amended this proposal to ask for additional public lands held by the BLM in exchange for additional private lands held by Simplot. Simplot's "Intended Use" was the following:
The parcel included in this amendment would be considered supplemental and would be used for the same purposes as those lands described in the original land exchange proposal.
In July of 1995, the EPA prepared an Ecological Risk Assessment for the EMF Site. AR 322. It found that contaminates were being released from the EMF Site through the air, groundwater, and wastewater. Id. The Assessment found elevated levels of metals, radionuclides, fluoride and phosphorous in the soils and vegetation both within and outside the EMF boundaries. Id. The EPA concluded that the levels of contamination did not warrant a soil cleanup but did call for "institutional controls;" and that for the off-site areas, any risk to human health could be minimized by preventing residential development. Id.
In August of 1996, the land exchange process moved forward and a draft EA and FONSI was prepared by the BLM. AR 316, 408. In the draft FONSI, the BLM proposed going forward with the land exchange. The draft of the EA accompanying the FONSI stated that Simplot was proposing this land exchange "to obtain land suitable for gypsum waste disposal" because the company was concerned that its existing gyp-stack might be shut down by the EPA. AR 413. Simplot feared that failing to find a new site "could possibly mean the demise of Simplot's Don plant, increased operation and production costs, and loss of jobs." Id. According to Simplot's studies, the site "should be located as close as possible to their existing fertilizer processing plant" in order to be "economically feasible." Id.
The draft EA went on to discuss the possible location and layout of the new gyp-stack in broad terms as no final plans had been developed:
Simplot's primary interest is the large canyon within Section 19 [due south of Simplot's existing property line] of the selected land. The canyon area would be developed for the disposal and storage of gypsum waste following applicable state and federal regulations. Specific information about how the gypsum would be stored in the canyon is not available. Design plans and best engineering practices would be developed by Simplot prior to initiating a new stack within the canyon. These plans and engineering practices would be reviewed and approved by state and federal agencies having jurisdiction and authority. In general an access road would be built into the canyon along with a slurry line. The slurry line would transport gypsum waste from the Don plant to the stack within the canyon. The stack would start at the mouth of the canyon's north end and progress up the canyon (moving in a southerly direction) over its years of operation. The parcel of selected land within Section 17 [due east of Simplot's existing property line] would provide a buffer to the canyon within Section 19 and the Don plant.
The EPA reviewed these draft documents, and responded in a letter dated September 10, 1996, that it "is in support of the proposed land exchange." AR 619. The EPA explained that "Simplot's ownership and control of these properties will facilitate the implementation of any institutional controls identified in the EPA [ROD]. Furthermore, we encourage any expansion of the proposal to include additional areas adjacent to the current Simplot property boundary." Id.
About a month after this draft EA was prepared, the land exchange was put on hold, awaiting a pending EPA Record of Decision (ROD) concerning the EIS evaluating the EMF Site. AR 316, 2401, 2409. The EPA issued the ROD in 1998. To protect groundwater, the EPA, in the ROD, selected a remedy that was designed primarily to capture arsenic that was leaching from the EMF Site. See Exhibit A to Prouty Declaration at p. 13. Groundwater monitoring revealed arsenic levels in the groundwater exceeding safe levels set by the Safe Drinking Water Act. Id. at p. 10. ...