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Southern Ute Tribe loses bid to stop fracking rule on reservation

Tuesday, June 23, 2015

A fracking well on the Mandan, Hidatsa and Arikara Nation in North Dakota. Photo by Talli Nauman / Native Sun News

A federal judge on Monday refused to block the Obama administration's fracking rule from being imposed on the Southern Ute Tribe of Colorado.

Judge Marcia S. Krieger noted that the tribe waited until June 18 to file its complaint. The request for a temporary restraining order was filed on Monday, only two days before the Bureau of Land Management rule goes into effect across the nation.

"Rather than promptly challenging the rule well in advance of the effective date (thus giving the parties and the court the luxury of time to carefully address and evaluate the issues), the tribe waited until June 18, 2015, less than a week before the effective date of the rule, to bring this challenge, and until June 22, 2015, two days before the rule’s effective date, to seek injunctive relief," Krieger wrote in the six-page decision.

"Nothing in the record reveals any reasons why the tribe was unable to diligently commence this action and seek injunctive relief earlier – the tribe does not, for example, contend that BLM representatives induced the tribe to delay suit until the last minute based upon promises of further negotiations over the rule’s operation or demonstrate that the Tribe was unable to discover the existence of some critical fact until the very eve of the rule’s effectiveness," Krieger added.

The decision does not mean the case is over. Krieger is holding a hearing this morning to set a briefing schedule to determine the merits of the tribe's claims.

The controversial rule sets hydraulic fracturing standards for public and Indian lands. The tribe argues that it violates existing law governing energy development in Indian Country.

"A ‘one size fits all’ approach that encompasses both tribal and federal lands will simply add to the already burdensome federal pre-requisites for developing tribal minerals," the complaint stated, quoting comments submitted by the tribe to the Bureau of Land Management before the rule was finalized in March.

The House Appropriations Committee approved a funding bill last week that prevents BLM from enforcing the rule. Supporters say the regulation will hinder tribal development.

"In Indian Country, they've done a good job of regulating their own land," said Rep. Ken Calvert (R-California), the chairman of the Interior appropriations subcommittee, said at a markup session last Wednesday.

The House is expected to begin consideration of the bill, H.R.2822 on Thursday, according to the Republican majority leader's schedule. It marks the first time in six years that lawmakers have considered a funding bill for DOI and its agencies, including the Bureau of Indian Affairs.

Turtle Talk has posted documents from the case, Southern Ute Tribe v. DOI.

Federal Register Notice:
Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands (March 26, 2015)