Tribal issues absent from court’s fracking rule decision

By Ellen M. Gilmer | 10/02/2017 07:26 AM EDT

When a federal court issued a long-awaited decision late last month on Obama-era hydraulic fracturing standards, lawyers for the Ute Indian Tribe saw one thing missing: their entire argument.

A pumpjack operates at an oil and gas site on the Uintah and Ouray Indian Reservation in Utah.

A pumpjack operates at an oil and gas site on the Uintah and Ouray Indian Reservation in Utah. Ellen M. Gilmer/E&E News

When a federal court issued a long-awaited decision late last month on Obama-era hydraulic fracturing standards, lawyers for the Ute Indian Tribe saw one thing missing: their entire argument.

The ruling from the 10th U.S. Circuit Court of Appeals skips discussion of the Utes’ tribal sovereignty claims, focusing instead on the judges’ conclusion that litigation over the fracking rule should be scrapped in light of the Trump administration’s efforts to revoke the measure.

"Given that we are vacating the district court’s opinion and dismissing the underlying action, we need not address the additional arguments raised by the Ute Indian Tribe challenging the district court’s ruling as regards the Tribe," wrote Judge Mary Beck Briscoe.


The decision to pass over tribal issues was a blow to the Utes, a northeastern Utah tribe that has pushed for years for a court ruling that blocks the federal government from treating American Indian lands the same as public lands.

"We are disappointed they did not get to it today because we had clearly shown the flaws in the United States’ paternalistic position," Fredericks Peebles & Morgan LLP attorney Jeffrey Rasmussen said after the Sept. 21 decision.

The Utes and other tribes have long opposed the way the Obama administration’s fracking rule was designed to apply uniformly to tribal lands and public lands. Tribal advocates say the approach violates federal law and undermines the efforts individual tribes have taken to oversee oil and gas development on their lands. Dozens of tribes weighed in during the rulemaking process, and the Utes eventually took the Bureau of Land Management to court (Energywire, July 11, 2016).

Lawyers for the Utes say BLM cannot make rules for tribal lands. They say the agency was created to manage public lands while the Bureau of Indian Affairs carries out some oversight of tribal lands. BIA sometimes adopts BLM rules for itself and delegates enforcement authority back to BLM. But the lawyers say BLM has enlarged that enforcement authority to justify rulemaking power that Congress never intended.

Government lawyers have maintained that BLM has "broad regulatory jurisdiction" over tribal oil and gas operations and is entitled to deference in how it exercises that authority.

Fighting for attention

During more than two years of litigation, the Utes’ arguments have often taken a backseat to higher-profile concerns from several Western states that say the regulation treads on their turf, plus industry groups that say the measure will put some drillers out of business.

The Utes got their biggest legal nod in late 2015 when the U.S. District Court for the District of Wyoming issued a preliminary injunction freezing the fracking rule. Judge Scott Skavdahl devoted several pages of his opinion to the tribe’s complaints, concluding that BLM failed to sufficiently involve tribes in the rulemaking process.

Though the agency held regional meetings with tribes before finalizing the fracking rule, Skavdahl agreed with the Utes’ assertion that the forums were merely informational sessions that did not give the Indian nations a chance to actually shape the regulation. The Utes hailed the decision at the time as gratification after years of raising their concerns (Energywire, Oct. 5, 2015).

The district court’s final decision striking down the fracking rule, however, said nothing about the Utes’ arguments; it focused on state challengers’ claim that the federal government lacks authority over fracking at all. And the 2015 preliminary injunction decision, which had been appealed by the U.S. government, was ultimately vacated after the appeals court found the case to be moot. Tribal leaders celebrated the rule’s defeat but privately lamented the lack of new case law for American Indian issues.

The Utes are left with that same feeling after the recent 10th Circuit decision.

The complex ruling dismissed litigation over the fracking rule in light of Trump administration efforts to undo the regulation but also scrapped the district court’s decision that struck down the rule. The Obama-era measures will take effect once the 10th Circuit issues a formal mandate in the case — although that process could be sidelined if parties ask the court to reconsider the decision (Energywire, Sept. 22).

The 10th Circuit didn’t delve into the core issues for any of the parties, but Briscoe’s opinion, joined by Judge Jerome Holmes, included discussion of whether the question of BLM authority over fracking was worth settling. They concluded that the issue was "unfit for judicial review" and did not see a need to reach the Utes’ separate arguments about whether BLM has rulemaking authority over tribal lands.

‘They want some certainty’

Rasmussen, the tribe’s lawyer, says the court should have taken the extra step because the tribal issues are distinct from the public lands issues.

The absence of tribal issues in the decision was all the more frustrating, he said, because the court seemed receptive to the Utes’ position during oral arguments in July. Judge Harris Hartz was particularly interested, criticizing government and environmental lawyers for skipping over the tribe’s claims in their own briefs to the 10th Circuit.

"That’s frustrating for us that the tribe has put a fair amount of work into this case and into this issue, and we feel like we defeated the United States on the substance," Rasmussen said. "It’s frustrating to have done all that and then have it be, ‘Well, maybe someday in the future you’ll be able to get to that issue, but we’re not going to get to it now.’"

Hartz maintained that position in last month’s decision, authoring a partial dissent to explain that he would have decided the Utes’ issues because the other parties failed to push back during the appeal.

"The Tribe has adequately raised the issues specific to it both in district court and in this court," he wrote. "Yet the other parties have failed to challenge the Tribe’s reasoning. I would treat that failure as a waiver and affirm judgment for the Tribe with respect to Indian lands. Resolving that matter would entail no waste of judicial resources."

But the dissent is little comfort to the tribe, which says it now cannot offer certainty to oil and gas operators about future regulation.

"It doesn’t provide us the certainty we would like to have," Rasmussen said. "That was one of the things we were trying to get is some clarity because the amounts that companies have to invest in drilling, they want some certainty. We thought we’d get that, and we thought we deserved that."

The legal battle is likely not over. Rasmussen said the tribe plans to ask the 10th Circuit to reconsider its decision. Other parties are also expected to challenge the ruling and may even ask the Supreme Court to take their case if necessary.

If the question of BLM rulemaking authority for tribal lands remains unsettled at that point, the Utes could also challenge the Trump administration’s eventual rollback of the fracking rule — arguing that even the revocation is unlawful with respect to tribal lands because BLM lacks any rulemaking authority in that area.

Other tribes that favor BLM’s fracking rule for its environmental protections, meanwhile, may end up challenging the rollback on other grounds — pushing to reinstate the Obama standards.