Several more key filings have come into the federal litigation challenging the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands in advance of the June 23 consolidated preliminary injunction hearing. These briefs are summarized below:
BLM’s Opposition To The Preliminary Injunction Motions Filed By The States Of Wyoming And Colorado And By The State Of North Dakota
First, the BLM contends that the states failed to demonstrate its likelihood of succeeding on the argument that it exceeded its statutory authority, since Congress delegated the BLM authority over federal public lands and minerals through various statutes, including the Mineral Leasing Act of 1920 (MLA). The BLM further maintains that the Safe Drinking Water Act (SDWA)—cited by the states governments—does not displace its authority under the MLA.
The BLM also submits that the states failed to demonstrate irreparable harm, particularly because federal public lands are within the federal agency’s power to regulate. According to the BLM’s opposition arguments, the final fracking rule does not harm the states’ sovereign authority, but, instead, preserves that sovereignty.
Finally, the BLM argues that the balance of harms and public interest weigh against an injunction, because the BLM’s final rule covers all public lands in the United States, whereas the states’ regulatory authority does not extend beyond their borders.
The BLM largely echoed these arguments in its response opposing the State of North Dakota’s separate preliminary injunction motion, adding that economic harm is not a basis for granting a preliminary injunction, even if North Dakota were to suffer some economic harm in terms of reduced tax income.
Opposition To State Governments’ Preliminary Injunction Motions By Environmental Groups
Sierra Club and the other intervening environmental groups also filed arguments opposing the preliminary injunction motions by Wyoming, Colorado, and by North Dakota. Those arguments largely parroted ones set forth by the BLM in its opposition briefs. Specifically, the environmental groups argued that the BLM has broad statutory authority to regulate oil and gas development on federal lands; the states failed to show that they will suffer lost mineral or tax revenue due to the final rule; and that the public interest weighs against a preliminary injunction, since the BLM’s final rule will prevent drilling of new oil and gas wells using environmentally inadequate methods.
State Of Utah Joins The Fray
In addition, the State of Utah—which previously indicated its intent to intervene in the litigation—filed papers formally joining in the preliminary injunction arguments set forth by Wyoming, Colorado, and North Dakota.
UPDATE (June 23): On June 22, the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah filed an unopposed motion to intervene in the lawsuit challenging the BLM’s final fracking rule, as well as its own motion for a preliminary injunction. Among its arguments, the tribe contends that the BLM’s final rule is contrary to the federal government’s fiduciary obligations to manage Indian trust lands in a way that’s profitable for Indians, citing the Indian Mineral Leasing Act (IMLA). Those obligations are distinguishable from the federal mandate for overseeing non-Indian public lands, according to the tribe. Arguing that the final rule will hinder the Ute Indian Tribe’s economic development and reduce job opportunities in its sovereign territory, the tribe maintains the rule as promulgated is inconsistent with lawfully managing those two different types of public lands, and that a separate rule is necessary for Indian trust land. The Ute Indian Tribe also submits that the BLM did not properly consult with its tribal government in developing the final rule, contrary to Department of Interior policies and procedures, and that the BLM’s final rule exceeds its authority in light of the IMLA and other federal authority concerning Indian trust lands.
Mineral Law Blog will continue to monitor and report on these legal developments as they progress.
By Andrew Pieper (email@example.com) and Jenny Suh. Ms. Suh is a Summer Associate with Stoel Rives LLP and is not currently licensed to practice law.