Southern Utes, BLM settle fracking lawsuit

Monday, Nov. 7, 2016 10:02 PM
The sun sets behind an oil pump jack and the Rocky Mountains near Fredrick. The Southern Ute Indian Tribe adopted rules that meet or exceed the Bureau of Land Management's fracking regulations. As a result, the tribe and the BLM signed an agreement allowing the tribe's rules to govern fracking on tribal land.

The Southern Ute Indian Tribe and the Bureau of Land Management agreed Friday a tribal rule will govern hydraulic fracturing on tribal land.

The tribe sued the Department of the Interior in summer 2015, challenging the Bureau of Land Management fracking rule.

After the tribe amended its fracking rule, the BLM agreed the regulations meet or exceed the objectives of the federal rule, said Courtney Whiteman, a spokeswoman for the BLM.

The rules aim to ensure well integrity, water quality protection and public disclosure of chemicals used in the fracking process.

The tribe and the BLM signed the settlement documents Friday and they soon will be submitted to the U.S. District Court in Colorado so the lawsuit can be dismissed, Whiteman said.

As part of the settlement, the BLM and the Southern Ute Indian Tribe developed a memorandum of agreement that will govern cooperation between the agency and the tribe.

The main difference between the BLM's rule and the tribal rule is administration, said Tom Shipps, an attorney for the tribe.

If an operator submits an intent to frack to the BLM, the agency has an unlimited amount of time to review the company's plan, he said.

On Southern Ute land, after notifying the Southern Ute Indian Tribe Department of Energy about its fracking plans, a company could proceed unless it hears back from the tribe.

Companies also would be required to submit post-fracking reports and release the information about the chemicals used 30 days after a fracking treatment on

Fracking notifications would be forwarded to the BLM and it could comment. But the tribe would be the principal enforcers of its regulations and it would respond to complaints, Shipps said.

Red Willow and Red Cedar, tribal oil and gas companies, would be subject to the same requirements as any other company, Shipps said.

The tribe's position has been that its rules supersede the BLM's rule and apply without the BLM's approval, a news release said.

The settlement does not resolve this issue.

"The BLM could terminate the settlement agreement if it found the tribe wasn't acting prudently or wasn't fulfilling the expectations," Shipps said.

But the BLM's fracking rule allows for tribal and state rules to apply instead of the BLM's rules, if the tribal or state provisions meet or exceed the BLM's rules.

"We filed a lawsuit against the Department of the Interior challenging the BLM rule because we felt that tribal input had been ignored. Once we had the chance to sit across the table from each other in meaningful discussion, we recognized that we shared many of the same goals, including the exercise of sovereignty by the tribe over Southern Ute lands. We are glad that we have resolved this dispute in a government-to-government manner," Southern Ute Tribal Chairman Clement Frost said in a news release.

The BLM's fracking rule has not been implemented because there is other litigation pending in the 10th U.S. Circuit Court of Appeals in Denver. The litigation involves the state governments of Colorado, North Dakota and the Ute Tribe of the Uintah and Ouray Reservation in Utah, among other groups.

Regardless of the ruling in this case, Shipps expects the new memorandum to stand.

Even if the case reduces the BLM's environmental regulations, Shipps does not expect the Southern Ute regulations to change.