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  Hall Challenges Bureau: Tribal Chairman Questiosn BLM Authority      
to Regulate Fracking on Reservations

April 21, 2012
By Eloise Ogden-Regional Editor, Minot Daily News

The chairman of the Three Affiliated Tribes questions whether the Bureau of Land Management has authority to regulate hydraulic fracturing on Indian reservations.

"I can find no authority for the Bureau of Land Management to regulate activities on Indian lands, including hydraulic fracturing," Tex Hall told members of the House Natural Resource Committee's Subcommittee on Indian and Alaska Native Affairs at an oversight hearing in Washington, D.C., Thursday. Rep. Don Young, R-Alaska, is chairman of the subcommittee.

"Although the BLM has jurisdiction to regulate activities on 'public lands,' Indian lands are not public lands," Hall said. "Indian reservations are set aside and reserved for the exclusive use and benefit of Indian tribes. Neither the Federal Land Policy and Management Act of 1976 nor the Department of Interior's Departmental Manual provide BLM with direct or delegated authority over Indian lands."

The BLM is proposing regulations on hydraulic fracturing, also known as fracking, used in oil and gas development.

Fort Berthold Reservation is in the heart of the Bakken Formation, the most active oil and gas play in the United States.

"The tribe requests that the subcommittee and Congress pass legislation that would prevent Indian lands from being swept into laws and policies for public lands," Hall said.

BLM and Bureau of Indian Affairs are among several federal agencies that must approve oil and gas leases on Fort Berthold.

Adam K. Fletcher, a spokesman for the U.S. Department of Interior in Washington, D.C., told The Minot Daily News last month that in support of the president's energy priorities, Interior Secretary Ken Salazar believes that hydraulic fracturing technologies are integral to our continued ability to expand exploration and production of natural gas on public lands. As we continue to expand domestic natural gas production, it is essential that the public have full confidence that the right safety and environmental protections are in place."

Hall said about 250 wells are in production on Fort Berthold, and the Three Affiliated Tribes and allottees (individual landowners) have earned about $182 million in oil and gas royalties. "In addition, we have 905 vendors providing services directly to the oil and gas industry. Each of those vendors employs between four and 24 people. Based on an average employment of 12 jobs per company, that is in excess of 10,000 jobs," Hall said.

He said they expect more wells to be drilled on the reservation this year than were drilled in the first four years combined. Next year, he said they expect another 300 wells to be drilled.

Hall said the royalties and taxes from oil and gas production on tribal and allotted lands are a significant source of revenue for tribal government and income for allottees on Fort Berthold.

But, he said, additional burdens on oil and gas development could limit production and force operators to pull rigs off the reservation and move to state and private lands where the regulations are less onerous.

Hall gave the congressional subcommittee a list of a variety of other problems with BLM's proposed hydraulic fracturing regulations including:

-Fracking: "I am not aware of any incidents on tribal lands, or for that matter public lands, that would precipitate federal regulation," Hall said. He said federal regulation of shallow gas wells in Wyoming and Pennsylvania may be justified to protect ground water but he sees no such justification for deep horizontal wells like those that are drilled on Fort Berthold. "The wells drilled on our reservation and the hydraulic fracturing activities take place far below the water table. Without proof that these rules are necessary to protect against an identified threat to the environment, deep well fracking on the reservation should be exempt from the additional regulatory burdens that the proposed BLM regulations would impose," Hall said.

-Environmental health: He said he is greatly concerned about the environmental health of Fort Berthold and to maintain natural resources for many generations to come. "All I ask is that any regulations be based on sound science, as opposed to public outcry, and developed consistent with the federal trust responsibility as opposed to public interest standards.

-Lack of staff: He said BLM already lacks the staff to keep up with existing permitting requirements, let alone a new and complicated one.

-Permits: He said oil and gas operators seeking permits for oil and gas activities on Indian lands already undergo an extensive environmental review process.

-Federal study: He said the U.S. Environmental Protection Agency's study of hydraulic fracturing is still ongoing, and BLM's proposed regulations are premature in advance of that study.

-Economic impacts: He said the BLM's plan will have a significant economic impact on Three Affiliated Tribes. "For example, based on an 18 percent tribal royalty rate, a single oil and gas well provides the tribal government with more than $2 million per year in revenues to fund government functions. Multiply this by 100 or 200 wells producing tribally owned minerals and the numbers are staggering. While we do not have this many wells producing from tribally owned minerals yet, these kinds of numbers are not far off. The MHA Nation will not receive these revenues if companies are forced to pull drilling rigs off the reservation for cheaper and more certain development opportunities on state and private lands," Hall said.

Hall also appeared Thursday before the Senate Committee on Indian Affairs in regard to Senate Bill 1684 the Indian Tribal Energy Development and Self-Determination Act Amendments of 2011 and spoke on Three Affiliated Tribes' proposals that should be added to Indian energy legislation, including prohibiting BLM from applying regulations developed for public lands to Indian lands

He testified earlier before the House Committee on Appropriations' Subcommittee on Interior, Environment and Related Agencies, asking Congress to prohibit federal dollars from being used to implement the proposed hydraulic fracturing regulation until a number of prerequisites are met.

Link to story:

Three Affiliated Tribes
404 Frontage Road
New Town, ND 58763