Tribe enacts Tribal Hydraulic Fracturing Regulations and challenges Federal hydraulic fracturing rule

Sacha Smith | The Southern Ute Drum



The Tribe recently enacted its own hydraulic fracturing regulations and filed a lawsuit against the Bureau of Land Management to challenge the Bureau’s new hydraulic fracturing rule for federal and tribal lands. The lawsuit was filed in federal district court in Colorado, and comes after the Tribe’s extensive participation in the Bureau’s rulemaking process. That participation failed to yield the results the Tribe had hoped for. Because it is organized under the Indian Reorganization Act, however, the Tribe has the power to supersede BLM regulations, and in mid-June, Tribal Council enacted the Southern Ute Indian Tribe—Hydraulic Fracturing and Chemical Disclosure Regulations. The Tribe’s hydraulic fracturing rule is more stringent than the BLM rule in some important respects, while also being more streamlined.

In its challenge, the Tribe is arguing that the BLM went beyond its authority and acted unlawfully when it issued the new federal rule, and further, that the rule is inconsistent with tribal self-determination and self-governance. The Tribe’s suit asks the court to set aside the BLM’s rule to the extent that it violates the Tribe’s power over its own lands.

The Tribe participated throughout the BLM’s rulemaking process, providing comments, attending meetings with BLM officials, participating in tribal workgroups, and drafting statements of position. The Tribe’s comments demonstrated that some of the technical requirements proposed by BLM were unnecessary and overly burdensome. In addition, the Tribe requested that Indian lands be treated differently, since a “one size fits all” rule that applies to both tribal and federal lands would just add to the already burdensome federal requirements for developing tribal minerals, and would put the Tribe at a further disadvantage. Reminding the BLM that the Tribe has the power to supersede the federal regulations, the Tribe suggested that the BLM include an “opt out” provision for tribes.

When the nearly 100-page final rule was issued in late March, attorneys for energy tribes, western states, and the petroleum industry began scouring the rule and participating in weekly meetings to discuss the rule, its impacts, and possible challenges. In the weeks that followed before the federal rule went into effect in late June, several states and industry groups filed suit in federal court in Wyoming. On June 18, the Southern Ute Indian Tribe filed its lawsuit in Colorado, and on June 22, the Ute Indian Tribe (Northern Ute) intervened in the suit that had been filed in Wyoming. Both courts were presented with motions to delay the rule, and the Wyoming court ordered that the federal rule be put on hold until mid-summer. The Colorado court put off its decision on the Southern Ute Indian Tribe’s motion to delay the rule, and scheduled a hearing in mid-October in Durango in that case. Tribal attorneys will be filing briefs this summer.

In the meantime, the Tribe’s Hydraulic Fracturing and Chemical Disclosure Regulations are in effect on lands subject to the Tribe’s regulatory authority, and the Tribe has notified the operators of the new regulations. To minimize confusion and duplication, the Tribe’s regulations are similar to Colorado’s regulations. To protect the Tribe’s water, the Tribe’s regulations are also more stringent than the BLM’s new rule by requiring more cement to secure the barrier between the drill hole and the surrounding rock. On the other hand, the Tribe’s regulations will allow operations to proceed more efficiently. The BLM’s rule requires the BLM’s pre-approval before an operator can begin hydraulic fracturing. There is no timeline in that rule for when that approval may come. The Tribe’s rule only requires prior notice to the Tribe.

The Tribe’s lawsuit has garnered attention, and the Tribe has been invited to testify at an upcoming hearing on Capitol Hill. On July 15th, Councilman Mike Olguin will be testifying in an oversight hearing conducted by the House Subcommittee on Energy and Mineral Resources. The hearing is titled “The Future of Hydraulic Fracturing on Federally Managed Lands.”

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