Tenth Circuit Tackles Indian Fracking Rule

 By Amber Penn-Roco


On March 26, 2015, the Bureau of Land Management (“BLM”) issued a final rule concerning hydraulic fracturing on federal and Indian lands.  The Ute Indian Tribe of the Uintah and Ouray Reservation, as well as the States of Wyoming, Colorado, North Dakota and Utah, are challenging the final rule.  Further, environmental groups, including the Sierra Club, have intervened, in defense of the final rule.  

The final rule was supposed to take effect on June 24, 2015.  However, on September 30, 2015, the U.S. District Court for the District of Wyoming issued a preliminary injunction, enjoining the BLM from enforcing the final rule.  The BLM is appealing the injunction to the Tenth Circuit Court of Appeals. 

The BLM, and the intervening environmental groups, filed a Motion to Expedite, requesting that the Tenth Circuit expedite their appeal of the injunction.  They argued that the injunction prevents the BLM from mitigating the risks to resources posed by hydraulic fracturing on federal and Indian lands, arguing that this justifies acceleration of the appeal, as hydraulic fracturing is currently occurring on 90 percent of the wells drilled on federal and Indian lands. 

 In response, the States argued that there was no exigency, as the rule has been in the works for more than five years and that BLM did not show any harm that would result from the current litigation schedule.   

Further, industry trade groups, including the Independent Petroleum Association of American and the Western Energy Alliance, filed a Motion to Dismiss for Mootness, arguing that because the District Court will soon issue a decision on the merits of the case, the BLM’s appeal of the injunction is moot.  In the alternative, the Industry Petitioners requested the court enter a stay in the appeal until the District Court issues a final decision.   

The Tenth Circuit denied both the BLM’s Motion to Expedite and the Industry Petitioners’ Motion to Dismiss for Mootness.  However, the Tenth Circuit interpreted the Industry Petitioners’ Motion for a Stay as a motion to abate the appeal pending the District Court’s ruling on a permanent injunction and stated that it will take the motion “under advisement pending further order of this court.” 

Meanwhile, the challenge to the final rule proceeds in District Court.  Last month, the Ute Tribe filed its Opening Brief, requesting that the court permanently enjoin the fracking rule, arguing that the BLM did not comply with its duty to consult tribes and that it did not have the authority to issue the regulations.  The Ute Tribe argues, “the United States and its co-respondents continue to offensively and paternalistically assert that they know what is best for the Ute Tribe and the Ute people.” 

Further, the Ute Tribe “again reiterates that it is one thing for the United States to adopt the Fracking Rule for its own lands, where it has the powers of both a government and the land owner; but it is something far different to paternalistically impose that exact same Rule against tribal lands, where the United States does not have the beneficial ownership.” 

While the importance of increased environmental regulations on fracking is debatable, any new regulations should not come at the expense of tribal sovereignty.  

Amber Penn-Roco is an attorney with Galanda Broadman, PLLC, in Seattle, Washington.  Her practice focuses on tribal sovereignty issues, including environmental issues, economic development, and complex Indian Country litigation.  Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting.  She is an enrolled member of the Chehalis Tribe.  She can be reached at (206) 713-0040 and amber@galandabroadman.com.