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Tribes Push for More Consultation on BLM Rule


June 26, 2012
By Ellen M. Gilmer, E&E Reporter
A holdup in the making of a new federal rule for hydraulic fracturing may give tribal nations a window to reiterate their concerns about the proposal.

The U.S. Bureau of Land Management (BLM) last week added two months to the comment period for a rule that would apply to fracking on public and tribal lands. Negotiations seem driven primarily by the oil and gas industry, but tribes are hoping to use the extension as an opportunity to assert their contention that the inclusion of tribal lands in the rule is an overstep.

"Tribal lands are not public lands," the National Congress of American Indians' Leslie Wheelock said last month (EnergyWire, May 15). "The regulations try to come in and put a layer of control over what the tribes are trying to do."

Energy companies that operate on tribal lands must get approval from BLM and the Bureau of Indian Affairs -- both part of the Department of Interior -- as well as the tribe itself. Tribal advocates worry that additional rules would just be red tape. Officials from the Mandan, Hidatsa and Arikara (MHA) Nation in North Dakota, for example, say increased federal oversight of their Bakken Shale drilling would threaten tribal sovereignty and discourage industry from doing business there.

The Obama administration has defended the proposal as a necessary safeguard for the fracking process, which, combined with horizontal drilling, has contributed to a burst of activity in shale drilling nationwide. The rule would set well construction standards and require disclosure of chemicals used during fracking, which shoots a mixture of fluids and sand deep underground to release oil and gas from shale rock.

The comment period, which was originally set to close July 10, will extend to early September under the new timetable (EnergyWire, June 22). The administration has said the final rule is still expected by the end of the year (E&ENews PM, June 25).

A chance to weigh in

Tribes are taking advantage of the added time after they say the administration shirked its policy of engaging in government-to-government consultation with American Indians before making plans that would affect them.

"We were not being included in the conversations," MHA Chairman Tex Hall told EnergyWire yesterday.

BLM held meetings over a two-week period in January in Tulsa, Okla.; Billings, Mont.; Salt Lake City; and Farmington, N.M. According to the agency, 84 tribal members representing 24 tribes attended the four meetings.

But tribal officials have dismissed the meetings as mere "informational sessions" that didn't give them a chance to contribute to the rulemaking.

"Proper tribal consultation is an expression of the unique legal relationship between Indian tribes and the federal government, the federal trust responsibility and our right to self-government," Hall wrote in a May letter to Interior Secretary Ken Salazar.

Responding to an earlier letter Salazar had sent him defending the BLM rule, Hall said the agency's attempt at consultation fell far short of expectations.

"You also wrote that 'BLM is committed to working closely with tribes throughout the development of this rule.' However, by the time BLM started consulting with tribes, BLM had already developed its regulations," Hall wrote.

Now, tribes have a second chance to weigh in, said MHA Nation energy administrator Fred Fox. BLM has scheduled a July meeting at Fort Berthold, N.D., home of the MHA tribe.

"It's been added," said North Dakota BLM spokeswoman Melodie Lloyd, "in an effort to do what we can to inform our publics."

Lloyd would not say whether the proposed rule's application to tribes was likely to change, but Fox is optimistic.

"They're listening to us," he told EnergyWire after the delay was announced. "That's what we're hoping for."

The best-case scenario, Hall said, would be for BLM to remove tribal lands altogether from the rule. But he would also be satisfied with an opt-out clause for tribes that have regulations that meet or exceed BLM's standard. The MHA Nation is starting work on fracking rules now.

"Tribes are in the best position to regulate their oil and gas," Hall said. "Why would you want to get in front of us?"

BLM acting Deputy Director Neil Kornze, Assistant Director Mike Nedd and Montana State Director Jamie Connell will visit the reservation next month. The schedule has not been finalized, but officials are expected to take a rig tour and see a well get fractured July 12 and hold a meeting July 13.

It is unknown at this time whether other consultation dates will be added, but the Northern Ute Tribe in Utah would be a prime contender, based on its recent acceleration of oil and gas development in the area.


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