The Southern Ute Indian Tribe filed a lawsuit against the Department of the Interior on Thursday, challenging the Bureau of Land Management’s new hydraulic fracturing rule.
The rule, which is set to go into effect Wednesday, also is the subject of suits filed earlier this month, including a joint suit by the states of Colorado, Wyoming and North Dakota, as well as another filed by the Western Energy Alliance and Independent Petroleum Producers on behalf of 46 trade associations and royalty-owners groups.
Hydraulic fracturing is a technique used by the energy industry to extract oil and gas from rock by injecting high-pressure mixtures of water, sand or gravel and chemicals. Fracking has been a controversial subject, particularly in the past decade, as it has grown in usage. Concerns include groundwater contamination, well-leakage and an increase in earthquakes in areas where the technique is used extensively.
The rule requires a federal permit on public and tribal lands, in addition to the state permits already required. It applies to about 750 million acres of public and tribal lands, as well as private lands where the minerals are federally managed. In addition to the permit, the rule generally requires metal tanks rather than waste pits to store waste materials and says companies have to disclose the chemicals they use in their fracking formulas.
The Southern Ute suit, filed in federal court in Denver, alleges that the rule is in conflict with the Indian Mineral Leasing Act. It “asks the court to vacate those parts of the rule that violate the IMLA and frustrate the tribe’s authority over its own lands,” the tribe said in a news release late Friday afternoon.
The rules will have a real effect on the tribe’s ability to provide services to its members, said Southern Ute Chairman Clement Frost.
“The BLM was overreaching when it enacted this rule for tribal lands,” he said. “Tribal lands should be treated differently than federal lands. Some of the provisions in this new rule are just burdensome regulations that are not tied to an environmental benefit.”
The tribe passed its own hydraulic-fracturing and chemical-disclosure rules.
The tribe’s rules differ from the BLM’s rule in two key ways, said Bob Zahradnik, operating director of the Southern Ute Growth Fund.
“The tribe’s regulations provide more protection for aquifers with less bureaucratic morass,” he said. “It’s a win-win. Our regulations are compatible with Colorado’s regulations, and they also avoid the pre-approval delays that will be caused by the BLM’s hydraulic-fracturing rule.”
The delays can be significant. The Western Energy Alliance estimated that state approvals take an average of 30 days, while federal approvals take an average of 228 days.
“Those delays put the tribe in a bad position relative to adjacent-fee landowners,” Zahradnik said. “If it is too burdensome to do business on tribal lands, operators just take their business elsewhere.”
Sam Maynes of Maynes Bradford Shipps & Sheftel, which is representing the tribe in the suit, said the firm will be filing a motion for a temporary restraining order Monday to enjoin the BLM’s rule from taking effect. They are requesting a hearing before the judge Tuesday to see if the restraining order has been granted.
“I’m not aware of any other tribes interested in joining the suit, but that may change once they hear about it,” he said.
On the other side of the debate, six conservation groups represented by EarthJustice are defending the rule, saying that while it may not achieve everything they had hoped, it is a step in the right direction. They have requested permission from Judge Scott Skavdahl in the District of Wyoming, which is hearing the states’ and industry’s suits, to defend the BLM rule along with the Department of the Interior.
“Our public lands belong to all Americans,” said EarthJustice staff attorney Michael Freeman, who is representing the group, which includes the Sierra Club and Conservation Colorado Education Fund. “They should be managed under strong national standards that protect our water, land and wildlife – not just to benefit oil and gas companies.”
The states and the industry group have requested an injunction halting the implementation of the rule until their cases have been heard.
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