What Should Tribes Expect from Federal Regulations? The Bureau of Land Management's Fracking Rule and the Problems with Treating Indian and Federal Lands Identically

Abstract

On March 26, 2015, the Bureau of Land management (BLM) published its Final Rule regarding Hydraulic Fracturing on Federal and Indian Lands (Final Rule). Work on the Rule had begun nearly four and a half years earlier as a way to update the agency’s outdated regulatory scheme to account for new fracking technology and growing public concern over the practice and potential safety concerns related to fracking.

The Final Rule amassed a number of procedural and substantive requirements for fracking operations and proposed to apply these standards uniformly to both public lands and lands held in trust by the Federal government for the benefit of Indian tribes. According to the Final Rule, such uniformity was necessary to ensure tribal lands and communities “all receive the same level of protection as provided on public lands.” In response to concerns raised during the rule-making process that such a uniform rule ignored tribal sovereignty, tribal self-determination and the Federal government’s trust responsibility to Indian tribes, the BLM expressed its view that providing Indian lands with the same substantive protections as Federal public lands was consistent with the trust responsibility and that the rule promoted tribal sovereignty by “facilitating coordination.” Furthermore, the agency noted that the rule included a provision allowing a tribe to request variance but made clear that any such variance, if approved in the BLM’s discretion, would not “adopt tribal regulations as the Federal rule.” That approach was sufficient because, according to the BLM, “[b]y recognizing tribal regulations, [the Final Rule] accords with tribal self-determination to the extent that could be expected from a rule governing hydraulic fracturing operations.”

Although the merits of the Final Rule remain to be litigated, the BLM’s rule-making process and the numerous challenges to the Final Rule highlight the myriad complexities of regulating fracking on a national basis. This article provides a much-needed complement to literature analyzing regulatory responses to fracking by providing a scholarly analysis of the Final Rule within the broader context of tribal sovereignty and federal Indian law. Analyzing the BLM’s actions in light of the federal government’s tribal consultation obligations, the agency’s statutory authority, and the broader federal trust responsibility, especially as that responsibility has evolved to promote tribal self-determination, demonstrates the need to re-visit this controversial regulatory action as it applies to Indian Country.

Keywords: Indian tribes, sovereignty, Indian Country, regulations, Bureau of Land Management, BLM, hydraulic fracturing, fracing, fracking, Oil and Gas Hydraulic Fracturing on Federal and Indian Lands, Wyoming v. Department of the Interior, Indian Mineral Leasing Act, Indian Mineral Development Act