United States v. Fmc Corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 06-35429
SHOSHONE-BANNOCK TRIBES,
Intervenor-Appellee,  D.C. No.
CV-98-00406-BLW
v.
OPINION
FMC CORPORATION,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
May 6, 2008—Seattle, Washington
Filed June 27, 2008
Before: Susan P. Graber and Johnnie B. Rawlinson,
Circuit Judges, and Otis D. Wright II,* District Judge.
Opinion by Judge Graber
*The Honorable Otis D. Wright II, United States District Court for the
Central District of California, sitting by designation.
7639
UNITED STATES v. FMC CORP. 7641
COUNSEL
Ralph H. Palumbo, Summit Law Group PLLC, Seattle, Wash-
ington, for the defendant-appellant.
Paul C. EchoHawk, EchoHawk Law Offices, Pocatello,
Idaho, for the intervenor-appellee.
7642 UNITED STATES v. FMC CORP.
Todd S. Aagaard, Environment and Natural Resources Divi-
sion, United States Department of Justice, Washington, D.C.,
for amicus curiae United States of America.
OPINION
GRABER, Circuit Judge:
In the late 1990s, Plaintiff United States and Intervenor
Shoshone-Bannock Tribes (“the Tribes”) approached Defen-
dant FMC Corporation, a mining company operating in Idaho,
about potential violations of federal and tribal environmental
laws. FMC reached an agreement with each party. FMC
agreed to pay the Tribes $1.5 million per year in lieu of apply-
ing for certain tribal permits. Concerning federal law, FMC
and the United States entered into a detailed agreement
(“Consent Decree”), which they presented to the federal dis-
trict court for approval. The district court approved the Con-
sent Decree, and we affirmed. United States v. Shoshone-
Bannock Tribes (FMC Corp.), 229 F.3d 1161 (9th Cir. 2000)
(unpublished disposition).
In 2001, FMC ceased some of its mining operations,
stopped making its annual payments to the Tribes, and refused
to apply for certain tribal permits. After negotiations between
the Tribes and FMC failed, the Tribes sought enforcement of
the Consent Decree in district court. The district court held
that the Tribes could enforce the Consent Decree as third-
party beneficiaries and that the Consent Decree required FMC
to apply for tribal permits. FMC appealed. We hold that the
Tribes lack standing to enforce the Consent Decree and, there-
fore, vacate the district court’s orders and remand with
instructions to dismiss the action.
FACTUAL AND PROCEDURAL HISTORY
Until late 2001, FMC produced phosphorous at a plant near
Pocatello, Idaho. The plant is located on land within the
UNITED STATES v. FMC CORP. 7643
Tribes’ Reservation, but FMC owns the land in fee. FMC
stored the waste generated by the plant in ponds on its prop-
erty.
In 1997, the United States Environmental Protection
Agency (“EPA”) contacted FMC to express its concern that
FMC was violating federal environmental laws, including the
Resource Conservation and Recovery Act of 1976 (“RCRA”),
42 U.S.C. §§ 6901-6992k. After negotiations in which the
Tribes participated, FMC and the United States reached an
agreement. In 1998, the United States filed suit in federal dis-
trict court and, at the same time, presented to the court a con-
sent decree embodying the government’s agreement with
FMC. The district court allowed the Tribes to intervene and
present objections, but the court ultimately approved the Con-
sent Decree. The Tribes appealed, and we affirmed. FMC
Corp., 229 F.3d 1161.
The Consent Decree and its appendices comprise nearly
100 pages and set forth detailed requirements, duties, and
rights. Paragraph 1 defines many terms, but also contains a
catchall provision that, “[u]nless otherwise expressly provided
herein, terms used in this Consent Decree or its Attachments
that are defined in RCRA, or in regulations promulgated
under RCRA, shall have the meaning assigned to them in
RCRA or in such regulations.” (Citations omitted.) The terms
“parties,” “Tribe,”1 and “person” are relevant to this appeal.
The Consent Decree defines “parties” as “the United States
(Plaintiff) and FMC Corporation (Defendant).” The Consent
Decree defines “Tribe” as “the Shoshone-Bannock Tribe
residing on the Fort Hall reservation near Pocatello, Idaho.”
Nowhere in the text of the Consent Decree is the term “per-
son” defined.
1
The parties, including the Tribes, and the district court use the term
“the Tribes” (plural). The Consent Decree uses the term “the Tribe” (sin-
gular). There is no suggestion that the terms differ, and we follow the par-
ties’ convention except, of course, when quoting the Consent Decree.
7644 UNITED STATES v. FMC CORP.
The Tribes are mentioned in many places in the Consent
Decree. For example, FMC must notify the Tribes before a
change in the plant’s ownership; the Tribes are entitled to
access the plant for certain purposes, including observation,
monitoring, and investigation; FMC may “obtain splits of any
samples taken by the United States, EPA, the Tribe, or their
representatives”; and the Tribes are to receive copies of tech-
nical reports, data, and documentation “upon request.”
Tribal permits are mentioned in paragraphs 8 and 76:
8. Permits: Where any portion of the Work
requires a federal, state, or tribal permit or approval,
Defendant shall submit timely and complete applica-
tions and take all other actions necessary to obtain
all such permits or approvals.
....
76. This Consent Decree shall not be construed
as a ruling or determination of any issue related to
any federal, state, tribal, or local permit, if required
in order to implement this Consent Decree or
required in order to continue or alter operations of
the FMC Pocatello Plant (including but not limited
to construction, operation, or closure permits
required under RCRA), and the Defendant shall
remain subject to all such permitting requirements.
The Defendant shall be responsible for obtaining any
federal, state, or local permit(s) for any activity at
the FMC Pocatello Plant, including those necessary
for the performance of the work required by this
Consent Decree.
Paragraph 77 contains a statement about rights and causes
of action:
77. Nothing in this Consent Decree is intended
either to create any rights in or grant any cause of
UNITED STATES v. FMC CORP. 7645
action to any person not a party to this Consent
Decree, or to release or waive any claim, cause of
action, demand, or defense in law or equity that any
party to this Consent Decree may have against any
person(s) or entity not a party to this Consent
Decree.
Paragraphs 55-59 set forth mandatory dispute resolution
procedures that must be followed before either party may
invoke the district court’s jurisdiction. Paragraph 55 states
that the “procedures may be invoked by either party.”
(Emphasis added.)
Paragraphs 84 and 85 make explicit the district court’s con-
tinuing jurisdiction:
84. This Court retains jurisdiction over both the
subject matter of this Consent Decree and the Defen-
dant for the duration of the performance of the terms
and provisions of this Consent Decree, including its
Attachments, for the purpose of enabling any of the
Parties to apply to the Court at any time for such fur-
ther order, direction, and relief as may be necessary
or appropriate for the construction or modification of
this Consent Decree, or to effectuate or enforce com-
pliance with its terms, or to resolve disputes in
accordance with Section XVI [¶¶ 55-59] (Dispute
Resolution) hereof.
85. The parties retain the right to seek to enforce
the terms of this Consent Decree and take any action
authorized by federal or state law not inconsistent
with the terms of this Consent Decree to achieve or
maintain compliance with the terms and conditions
of this Consent Decree or otherwise.
Around the same time as the United States-FMC negotia-
tions over federal environmental laws were underway, the
7646 UNITED STATES v. FMC CORP.
Tribes told FMC that tribal law required FMC to obtain cer-
tain tribal permits. FMC settled the tribal permit dispute by
agreeing to pay the Tribes a fee of $1.5 million per year,
beginning in 1998. FMC paid the fee each year from 1998
through 2001.
The dispute now before us arose when FMC discontinued
its operations at the plant in December 2001 and, thereafter,
refused to pay the annual $1.5 million fee. The Tribes and
FMC disagreed as to whether their agreement required pay-
ments to continue after the plant shut down, and negotiations
ensued. A key dispute (and one that continues through this
appeal) is whether FMC’s operations remain subject to tribal
jurisdiction.
Negotiations over the fee were unsuccessful and, in 2005,
the Tribes filed in district court a “Motion for Clarification of
Consent Decree.” The Tribes asked the district court to enter
an order “clarifying the Consent Decree previously entered in
this matter regarding the . . . Tribes[’] authority to . . . require
FMC to obtain appropriate Tribal permits for work activities
conducted at the FMC site.”2 FMC opposed the motion on
many grounds, including the ground that, “[b]ecause the
Tribes are not a party to the Consent Decree, disputes arising
under the Consent Decree are subject to resolution by the
United States, FMC, and this Court.”
While their motion for clarification was pending, the Tribes
filed an “Application for Preliminary Injunction.” The Tribes
sought an order from the court directing FMC “to immedi-
ately apply for and obtain all required Shoshone-Bannock
2
The Tribes also requested “clarification” concerning certain documen-
tation and inspection rights. Before the district court issued any ruling, the
Tribes informed the district court that FMC had substantially complied
with the Tribes’ requests on those issues, and the district court limited the
scope of its ruling to the tribal-permitting issue. The Tribes have not chal-
lenged the limited scope of the ruling, and the only issue before us is the
tribal-permitting issue.
UNITED STATES v. FMC CORP. 7647
Tribal permits . . . , including a Special Use Permit for hazard-
ous waste storage, treatment, and disposal, and a Building
Permit for the demolition activities currently underway at the
FMC site.” The Tribes acknowledged that they were not a
party to the Consent Decree but argued that they had “stand-
ing to seek an order enforcing FMC’s obligation to obtain
Tribal permits, [because] third-party beneficiaries to a consent
decree may in some instances enforce its provisions even
though not a party to the decree.” FMC opposed the applica-
tion for preliminary injunction on many grounds, including
the ground that “[t]he Tribes are not third-party beneficiaries
who can seek enforcement of the Consent Decree.”
On March 6, 2006, the district court issued an order
(“March 6 Order”) granting the Tribes’ motion for clarifica-
tion and dismissing as moot the Tribes’ application for a pre-
liminary injunction. The court rejected each of FMC’s
arguments against the Tribes’ motion. With regard to the
Tribes’ standing to enforce the Consent Decree, the district
court found that the Consent Decree conferred at least six dif-
ferent benefits on the Tribes and concluded: “By conferring
numerous benefits on the Tribes, the parties to the Decree
make it clear that the Tribes are an intended—and not merely
an incidental—beneficiary.” The court rejected FMC’s argu-
ment that paragraph 77 of the Consent Decree prevents
enforcement by the Tribes and concluded that:
(1) the Consent Decree requires FMC to apply for
permits that the Tribes specifically identify as being
required; (2) FMC may not refuse to apply for per-
mits on the ground that FMC does not believe the
permits to be applicable; (3) the Tribes have specifi-
cally identified the permits listed in the letter of
December 9, 2005; (4) FMC is required to apply to
the Tribes for the permits listed in the letter of
December 9, 2005; ([5]) FMC may make its chal-
lenges to the applicability of the permits in the Tribal
administrative process, and must exhaust that pro-
7648 UNITED STATES v. FMC CORP.
cess, or identify a legal exception to the exhaustion
doctrine, before seeking relief in this Court.
The district court’s order also noted:
[A]bout a week before this Court’s hearing on the
Tribes’ motions, FMC filed its Certificate of Com-
pletion of the “Work” under the Consent Decree
with the EPA. All parties agree that the next step is
for the EPA to determine whether that “Work” is in
fact complete. If it is, the EPA will issue to FMC an
Acknowledgment of Completion.3
After the March 6 Order, FMC began the tribal permit
application process, but it also filed a motion asking the dis-
trict court to reconsider its order. According to the district
court, while FMC’s motion to reconsider was pending, “the
Tribes’ counsel told FMC’s counsel that the Tribes were
imposing a deadline on FMC of May 10, 2006, to elect either
(1) to drop its appeal and pay a $1.5 million fee, or (2) if it
wanted to maintain its appeal, to pay a weight-based fee that
could exceed $100 million.”4 As that deadline approached,
FMC filed a motion to stay the March 6 Order pending the
district court’s ruling on the motion to reconsider, and it also
filed a protective notice of appeal of the March 6 Order. The
district court granted FMC’s motion to stay the March 6
Order “for a limited period of time until the Court can review
the Tribes’ briefing.”
3
The record is silent on whether the United States issued the Acknowl-
edgment, declined to issue it, or deferred deciding the question pending
the outcome of this appeal. The district court’s docket sheet reflects that,
whatever the United States’ action, the district court has not been asked
to rule on the Certificate or the Acknowledgment, if any exists.
4
The latter option calculated the fee based on the weight of the waste
FMC stored on site. The Tribes estimated that the fee could exceed $100
million.
UNITED STATES v. FMC CORP. 7649
On December 1, 2006, the district court issued a memoran-
dum and order lifting the stay and denying FMC’s motion to
reconsider. FMC filed a timely appeal from that order. We
consolidated the two appeals and denied FMC’s motion to
stay the March 6 Order pending appeal.5
STANDARDS OF REVIEW
We review de novo the district court’s interpretation of a
consent decree. Gates v. Gomez, 60 F.3d 525, 530 (9th Cir.
1995). We generally “give deference to the district court’s
interpretation based on the court’s extensive oversight of the
decree from the commencement of the litigation to the current
appeal.” Id. (internal quotation marks omitted). Whether a
party has standing to enforce a consent decree under the third-
party beneficiary doctrine, however, is an “issue[ ] of law that
must be reviewed de novo.” Hook v. Ariz., Dep’t of Corr., 972
F.2d 1012, 1014 (9th Cir. 1992).
DISCUSSION
[1] “A district court retains jurisdiction to enforce its judg-
ments, including consent decrees.” Id. The threshold issue is
whether the Tribes have standing to enforce the Consent
Decree. The Tribes concede, as they must, that they are not
a “party” to the Consent Decree because the Consent Decree
defines “parties” as the United States and FMC. Relying on
our decision in Hook, the Tribes argue that they are entitled
to enforce the Consent Decree anyhow, as intended third-
party beneficiaries.
[2] “Contract principles are generally applicable in our
analysis of consent decrees, provided contract analysis does
5
We then granted a motion to dismiss the second appeal, “because it is
unnecessary and duplicative of” the first appeal. The notice of appeal in
the second appeal was “deemed an amended notice of appeal in” the first
appeal. Both of the district court’s orders are therefore before us.
7650 UNITED STATES v. FMC CORP.
not undermine the judicial character of the decree. Key to the
present case, consent decrees are construed as contracts for
purposes of enforcement.” Hook, 972 F.2d at 1014 (citation
omitted); see also United States v. Asarco Inc., 430 F.3d 972,
980 (9th Cir. 2005) (“Without question courts treat consent
decrees as contracts for enforcement purposes. A consent
decree, like a contract, must be discerned within its four cor-
ners, extrinsic evidence being relevant only to resolve
ambiguity in the decree.”).
[3] In Blue Chip Stamps v. Manor Drug Stores, 421 U.S.
723, 750 (1975), the Supreme Court considered a complex
securities case that involved a consent decree between the
government and a private company. In reaching its conclusion
that the plaintiffs—non-parties to the consent decree—could
not enforce the consent decree at issue, the Court stated: “[A]
well-settled line of authority from this Court establishes that
a consent decree is not enforceable directly or in collateral
proceedings by those who are not parties to it even though
they were intended to be benefited by it.”
In Hook, we carved out an exception to that sweeping and
clear statement by the Supreme Court. Eleven prison inmates
had filed a suit against the Arizona Department of Corrections
in 1973, and the parties settled and entered into a consent
decree establishing certain rights for the inmates. Hook, 972
F.2d at 1013. Seventeen years later, the Department changed
its regulations, and 265 inmates sought to enforce the 1973
consent decree. Id. at 1013-14. We held that, even though
none of the original 11 inmates joined the 1990 action, the
other inmates nevertheless could enforce the consent decree
as intended third-party beneficiaries. Id. at 1014-15.
We acknowledged that the Supreme Court’s rule in Blue
Chip Stamps was broad, but we limited its reach:
[A] more thorough analysis reveals that the standing
rule from Blue Chip Stamps prohibits only incidental
UNITED STATES v. FMC CORP. 7651
third party beneficiaries from suing to enforce a con-
sent decree. In Blue Chip Stamps, the government
had been the plaintiff that compelled the earlier con-
sent decree, and the private beneficiaries of the
decree later sought to bring an action under the
decree. At the time the government entered into the
consent decree, it was well-settled that only the Gov-
ernment can seek enforcement of its consent decrees.
Because the Government knew at the time it entered
the consent decree that the private beneficiaries it
intended to benefit would be unable to bring actions
to enforce the consent decree, the private beneficia-
ries were only incidental third party beneficiaries.
This reading of Blue Chip Stamps is consistent
with the principle that in construing consent decrees,
courts use contract principles. In contract law, third
party beneficiaries of the government’s rights under
a contract are normally assumed to be only inciden-
tal beneficiaries and are precluded from enforcing
the contract absent a clear expression of a different
intent. Under contract principles, the private parties
seeking to enforce the government’s rights in Blue
Chip Stamps were incidental third party beneficia-
ries. The holding in Blue Chip Stamps is thus limited
to incidental beneficiaries or beneficiaries of consent
decrees where the government was the plaintiff; it
does not apply to intended third party beneficiaries.
Moreover, if Blue Chip Stamps were read broadly
to preclude even intended third party beneficiaries
from enforcing a consent decree, it would create a
direct conflict with [Federal] Rule [of Civil Proce-
dure] 71. Rule 71 clearly allows intended third party
beneficiaries to enforce consent decrees, and Blue
Chip Stamps should be read to avoid eviscerating
Rule 71.
7652 UNITED STATES v. FMC CORP.
Hook, 972 F.2d at 1015 (citations, internal quotation marks,
and alterations omitted).
[4] In short, under Ninth Circuit precedent, incidental third-
party beneficiaries may not enforce consent decrees, but
intended third-party beneficiaries may. Most other circuits are
in accord with our restrictive reading of the Supreme Court’s
statement in Blue Chip Stamps. See Pure Country, Inc. v.
Sigma Chi Fraternity, 312 F.3d 952, 958 (8th Cir. 2002) (“In
order for a third party to be able to enforce a consent decree,
the third party must, at a minimum, show that the parties to
the consent decree not only intended to confer a benefit upon
that third party, but also intended to give that third party a
legally binding and enforceable right to that benefit. This
standard applies whether or not the government is a party to
the consent decree.” (citation omitted)); Floyd v. Ortiz, 300
F.3d 1223, 1226 (10th Cir. 2002) (identifying the circuit split
and following, without analysis, the majority position that “in-
tended third-party beneficiaries of consent decrees have
standing to enforce those decrees”); Beckett v. Air Line Pilots
Ass’n, 995 F.2d 280, 286 (D.C. Cir. 1993) (following Hook);
Berger v. Heckler, 771 F.2d 1556, 1565 (2d Cir. 1985)
(“Although there is substantial authority for the proposition
[stated in Blue Chip Stamps], we think that this authority was
not intended to preclude nonparties from intervening to
enforce a consent decree where otherwise authorized by the
federal rules of civil procedure.”). But see Aiken v. City of
Memphis, 37 F.3d 1155, 1168 (6th Cir. 1994) (en banc) (“The
plain language of Blue Chip indicates that even intended
third-party beneficiaries of a consent decree lack standing to
enforce its terms. Although other circuits have held to the
contrary, we are unable to join them until the Supreme Court
revisits the unequivocal language of Blue Chip.” (citations
omitted)).
The Tribes argue that, under Hook, they are intended third-
party beneficiaries and not merely incidental third-party bene-
ficiaries. The Tribes point out that they were involved in the
UNITED STATES v. FMC CORP. 7653
negotiations concerning the Consent Decree; that the Consent
Decree refers to them many times; that the Consent Decree
gives the Tribes certain “rights,” such as notification rights
and rights of access to FMC’s property for specified purposes;
and that the district court allowed the Tribes to intervene in
the case and to object to the Consent Decree. In the Tribes’
view, those facts support the conclusion that they are intended
beneficiaries and not merely incidental beneficiaries.
We are not persuaded. Two key facts undermine the Tribes’
argument: the identity of the parties to the Consent Decree
and the text of the Consent Decree.
Unlike in Hook, the government is a party to the consent
decree in this case. In Hook, we distinguished Blue Chip
Stamps in part because the government was a party to the con-
sent decree in Blue Chip Stamps. Hook, 972 F.2d at 1015.
Hook plausibly can be read to hold that, when the government
is the plaintiff, third-party beneficiaries never have standing
to enforce the consent decree. See id. (concluding that “[t]he
holding in Blue Chip Stamps is thus limited to incidental ben-
eficiaries or beneficiaries of consent decrees where the gov-
ernment was the plaintiff; it does not apply to intended third
party beneficiaries.” (emphasis added)). There is some logic
to that position; unlike in Hook, where the original plaintiffs
lacked any remaining interest in enforcing the decree, the
government has an ongoing incentive to enforce its contracts.
But Hook also can be interpreted to hold only that, when the
government is the plaintiff, third-party beneficiaries are pre-
sumed to be incidental in the absence of a clear expression of
a different intent in the consent decree. See id. (“In contract
law, third party beneficiaries of the government’s rights under
a contract are normally assumed to be only incidental benefi-
ciaries and are precluded from enforcing the contract absent
a clear expression of a different intent.” (emphasis added)).
We need not resolve the ambiguity in Hook. Assuming, with-
out deciding, that there is only a legal presumption that the
Tribes are incidental third-party beneficiaries, the Tribes can-
7654 UNITED STATES v. FMC CORP.
not overcome that presumption because the Consent Decree
contains no clear expression of a different intent.
[5] The Consent Decree does contain a paragraph that dis-
cusses rights of non-parties to the Decree, but that paragraph
disclaims an intent to grant rights to third parties. Paragraph
77 states in full:
Nothing in this Consent Decree is intended either
to create any rights in or grant any cause of action
to any person not a party to this Consent Decree, or
to release or waive any claim, cause of action,
demand, or defense in law or equity that any party
to this Consent Decree may have against any per-
son(s) or entity not a party to this Consent Decree.
[6] In our view, paragraph 77 clearly expresses the parties’
intent that third parties cannot enforce the Consent Decree.
Several courts have interpreted similar wording to preclude
enforcement by third parties. See, e.g., Consol. Edison, Inc. v.
Ne. Utils., 426 F.3d 524, 528 (2d Cir. 2005) (contractual text:
“ ‘This Agreement . . . , except for the provisions of Article
II and Article 5.08, [is] not intended to confer upon any per-
son other than the parties any rights or remedies.’ ” (alteration
in original)); McKesson HBOC, Inc. v. N.Y. State Common
Ret. Fund, Inc., 339 F.3d 1087, 1091 (9th Cir. 2003) (contrac-
tual text under the heading “ ‘No Third Party Beneficiaries’ ”:
“ ‘This agreement [and other specified agreements] . . . are
not intended to confer upon any person other than the parties
any rights or remedies.’ ”); W. Alton Jones Found. v. Chevron
U.S.A. Inc. (In re Gulf Oil), 725 F. Supp. 712, 733 (S.D.N.Y.
1989) (contractual text: “ ‘This agreement . . . is not intended
to confer upon any other person any rights or remedies.’ ”).
Factoring in the presumption against third-party enforcement
for government consent decrees, there is no question that the
Tribes lack standing to enforce the Consent Decree.
The text of paragraph 77, as noted, disclaims enforcement
rights in “any person not a party to [the] Consent Decree.”
UNITED STATES v. FMC CORP. 7655
The Tribes argue that the disclaimer in paragraph 77 does not
apply to them, because they are a sovereign and not a “per-
son.” Even overlooking the natural reading of the text that
limits enforcement rights to the parties only, the Tribes’ argu-
ment fails on its own terms.
[7] The Consent Decree does not define the term “person.”
But the Consent Decree requires that all undefined terms be
given the meaning assigned to them by RCRA and RCRA
regulations. RCRA defines the term “person” this way:
The term “person” means an individual, trust,
firm, joint stock company, corporation (including a
government corporation), partnership, association,
State, municipality, commission, political subdivi-
sion of a State, or any interstate body and shall
include each department, agency, and instrumental-
ity of the United States.
42 U.S.C. § 6903(15) (emphases added). In turn, RCRA also
defines “municipality”:
The term ‘municipality’ (A) means a city, town,
borough, county, parish, district, or other public
body created by or pursuant to State law, with
responsibility for the planning or administration of
solid waste management, or an Indian tribe or
authorized tribal organization or Alaska Native vil-
lage or organization, and (B) includes any rural com-
munity or unincorporated town or village or any
other public entity for which an application for assis-
tance is made by a State or political subdivision
thereof.
Id. § 6903(13) (emphases added). Following the nested defini-
tions, the term “person” is defined by the Consent Decree to
include Indian tribes, such as the Tribes in this case.
7656 UNITED STATES v. FMC CORP.
The Tribes argue that this method of ascertaining the defi-
nition of “person” is wrong because it “requires the Court to
go beyond the definition of ‘person’ in 42 U.S.C. § 6903(15)
and engage in a two step reading of the definition of both
‘person’ and ‘municipality’ to get to inclusion of Indian
tribes. The Tribes are not within the direct definition of ‘per-
son’ under RCRA.” Nested definitions in statutory text are
very common. The Tribes provide no authority, and we have
discovered none, for the proposition that two-step definitions
have any less force than one-step definitions.
It is true that, as the Tribes point out, the Consent Decree’s
definition of the term “Tribe” does not provide that the Tribes
are a “person.” But that fact is unilluminating. The relevant
inquiry looks to the definition of “person,” not the definition
of “Tribe.” The definition of “Tribe” in the Consent Decree
merely identifies the relevant tribe; one would not expect it to
contain an exhaustive list of all the broad categories to which
it belongs.
The district court found important paragraph 77’s “fail[ure]
to mention the term ‘third-party beneficiary.’ It would have
been easy to name the doctrine and exclude it from applica-
tion.” The district court did not cite any authority, and we
know of none, supporting the proposition that a consent
decree must use, define, or disclaim the term “third-party ben-
eficiary.” And, of course, a contract can use whatever terms
the parties wish to express their agreement. See, e.g., Klamath
Water Users Protective Ass’n v. Patterson, 204 F.3d 1206,
1210-12 (9th Cir. 1999) (finding that the third parties were
not intended beneficiaries without discussing whether the
term “third-party beneficiary” was used in the contract). No
inference can be drawn in the Tribes’ favor from the fact that
the Consent Decree stated that “[n]othing . . . is intended . . .
to create any rights” instead of “nothing is intended to create
third-party beneficiary rights.” The former is a perfectly clear
construction and, in fact, is naturally understood to be an even
UNITED STATES v. FMC CORP. 7657
more emphatic disclaimer of any rights, third-party or other-
wise.
An additional consideration supports the conclusion that
paragraph 77 applies to the Tribes. The Consent Decree speci-
fies mechanisms for resolving disputes. Before the parties can
invoke the district court’s jurisdiction, they must proceed
through a number of steps. But those provisions apply only to
“either party,” i.e., not the Tribes. If the Tribes could enforce
the Consent Decree directly, the Tribes could hale the parties
into federal court without invoking any of the prescribed dis-
pute resolution mechanisms. We do not think that the Consent
Decree could have intended to grant a broader range of
dispute-resolving rights to the Tribes than to the parties them-
selves. See Williston on Contracts § 37.23, pp. 147-49 (4th
ed. 2000) (“It is clear that a third party beneficiary’s right to
enforce a contract cannot rise higher than the rights of the
contracting party through whom he claims.” (internal quota-
tion marks omitted)).
The Tribes’ final argument is one of policy: They contend
that reading the Consent Decree in a manner that leaves them
incapable of enforcing the Decree directly “would render the
Tribe’s rights under the Consent Decree utterly meaningless.”
The district court expressed this sentiment as well.
[8] The key flaw in that tempting argument has been
addressed by many authorities. By definition, all third-party
beneficiaries receive a benefit from a consent decree; other-
wise they would not be beneficiaries. But, as explained by the
D.C. Circuit, “[w]hen a consent decree or contract explicitly
provides that a third party is not to have enforcement rights,
that third party is considered an incidental beneficiary even if
the parties to the decree or contract intended to confer a direct
benefit upon that party.” SEC v. Prudential Sec. Inc., 136 F.3d
153, 159 (D.C. Cir. 1998); see also Consol. Edison, 426 F.3d
at 528 (rejecting the right of a third party to enforce a contract
because “the parties to the Agreement clearly created a third-
7658 UNITED STATES v. FMC CORP.
party right, but just as clearly they took pains to assure that
the right was limited . . . [and] not a right to sue”); McKesson
HBOC, 339 F.3d at 1091-92 (“The . . . Agreement’s express
rejection of any intent to create a class of third-party benefi-
ciaries in the shareholders . . . [means that,] [a]t most, the . . .
shareholders might be considered incidental third-party bene-
ficiaries, a status that provides no legal benefit.”); Pure Coun-
try, 312 F.3d at 958 (“In order for a third party to be able to
enforce a consent decree, the third party must, at a minimum,
show that the parties to the consent decree not only intended
to confer a benefit upon that third party, but also intended to
give that third party a legally binding and enforceable right to
that benefit.”); 9 Corbin on Contracts § 44.6, p. 68 (Rev. ed.
2007) (stating that it is “obvious” that, “where the terms of the
contract expressly state the intention of the promisee and
promisor concerning the enforceable rights of third parties,
the critical question of whether the parties intended the third
party to have such a right is easily answered”).
In closing, we note that, during the pendency of this appeal,
FMC began the process of applying for tribal permits, which
is the main relief that the Tribes have sought in this action. At
oral argument, the Tribes expressed their concern that, if we
were to hold that the Tribes lack standing to enforce the Con-
sent Decree, FMC would withdraw its permit applications and
undo the progress made to date on the proper resolution of
this dispute. In response to questioning from the panel,
FMC’s lawyer represented to the court that FMC understands
that it has the obligation to continue, and will continue, with
the current tribal proceedings to their conclusion. We accept
that statement from counsel as binding on FMC.6
6
Other remedies may exist, even though the Tribes cannot enforce the
Consent Decree. For example, the United States is a party to the Consent
Decree. Its right to enforce the Consent Decree is unaffected by paragraph
77. So far, the United States has remained unwilling to support the Tribes’
cause, but the Tribes can try to persuade the United States to read the Con-
sent Decree as they do and then enforce it against FMC.
UNITED STATES v. FMC CORP. 7659
Orders of March 6, 2006, and December 1, 2006,
VACATED; REMANDED with instructions to dismiss this
action. Costs on appeal are awarded to FMC Corporation.
Additionally, if the United States certifies that FMC has completed the
relevant work and presents that certification to the district court for
approval, the district court could allow the Tribes to intervene and object.
That is what occurred when an earlier dispute arose in 2000.
The merits of those and other potential alternatives are not before us,
and we express no view on them.