Fracking in bad faith

Pawnee Nation sues the federal government over oil and gas lease approvals

When a 5.8 earthquake—the largest in Oklahoma’s history—struck Pawnee on September 3, 2016, the Pawnee Nation of Oklahoma felt literally shaken into action.

Six weeks later, on November 18, the Pawnee Nation and Pawnee tribal member Walter Echo-Hawk filed suit against U.S. Secretary of the Interior Sally Jewell, the Bureau of Indian Affairs (BIA), and the Bureau of Land Management (BLM) to challenge federal oil and gas lease approvals on Indian trust lands within Pawnee jurisdiction. The litigation came after months of attempted resolutions and meetings with the tribe’s federal trust partners, and after the tribe’s October 2015 moratorium on leasing and hydraulic fracturing (fracking) approvals was repeatedly ignored. 

“Before that earthquake, we were content trying to resolve this administratively through negotiation. We had identified systemic problems and we thought we had time to work them out,” said Andrew Knife Chief, executive director of the Pawnee Nation of Oklahoma. 

“Then the earthquake hit and we realized—wow, we don’t have time. Unless we take more concrete action we’re never going to press this issue forward.”

The issues Knife Chief spoke of are repeated approvals of oil and gas leases by the BIA and BLM—including approvals for fracking and wastewater injection wells—within Pawnee Nation jurisdiction, but without Pawnee Nation consultation.

Under the National Environmental Policy Act (NEPA), federal law dictates that federal agencies, including the BLM and BIA, assess the potential environmental consequences of the proposed activity and disclose these to the public. The act requires “broad dissemination of relevant environmental information” to the public and an Environment Impact Statement if the action may significantly impact the environment. The National Historic Preservation Act (NHPA) requires federal agencies “make a reasonable and good faith effort” to identify cultural and historic sites in the area prior to issuing a permit or lease. And the Department of Interior Manual says agencies should “consult with tribes on a government-to-government basis” when plans affect tribal trust resources, and that notification “is not consultation.”

The lawsuit claims both the BIA and BLM have violated these directions.

After investigating wells within Pawnee Nation in 2015, the Pawnee discovered there were 170-plus underground injection control wells, which are used for disposing of wastewater produced from fracking. Some of these were located near Echo-Hawk’s home, on allotment—or tribal—land. Of the 170 wells, Knife Chief said the tribe had been aware of only eight.

“We want our trust agents to give us consultation and notification. The point is having our own people put eyeballs on the sites, our environmental experts onsite to do inspections … Some of these guys will take those big wastewater tanks that you see and open the spigot and drive country roads down here. But by us knowing where the wells are, we can regulate them. Right now they’re unregulated.”

The Oklahoma Corporation Commission (OCC) regulates drilling, fracking, and injection wells on state land, but because allotment land is governed by the tribe and held in trust by the federal government, those entities are responsible for regulation. Typically, the BIA will approve the business lease for the underground injection well and the EPA will approve the permit to do the injections. According to Knife Chief, the BIA works to achieve what they consider is in “the best interest of the Indian.” In most cases, he said, “best interest” means money.

“Nationally, the policy for Indian land is to approve leases, no matter what. With that kind of mindset in place, you don’t really care whether or not they’re following the leases … the whole point is if the land can make a penny, then it’s in the best interest of the Indian and that’s the only standard we use.”

Knife Chief and others believe different standards are necessary when considering what is in their nation’s best interest, such as protecting their homeland and its resources—including drinking water, which comes from the nearby Cimarron River, shallow aquifers, and creeks. 

The EPA’s most recent report (Dec. 2016) on hydraulic fracturing found “scientific evidence that hydraulic fracturing activities can impact drinking water resources under some circumstances,” including withdrawing water to use in fracking; spilling of hydraulic fracturing fluids and produced water; injection of hydraulic fracturing fluids into wells with inadequate mechanical integrity, allowing gases or liquids to move to groundwater resources; fracking directly into groundwater resources; inadequate treatment and discharge of wastewater to surface water; and improper disposal or storage of hydraulic fracturing wastewater in unlined pits.

“[Our federal partners] are here to protect us,” said Adrian Spottedhorsechief, a Pawnee Nation Business councilman.  “Some of this might be our fault, too—meaning us putting our whole trust in them and then them letting us down. As a nation, now, we’re taking steps forward—we did the moratorium to stop fracking and injection wells because they’re connected to the earthquakes.” 

“We know we’re not going to stop oil and gas in America,” Knife Chief said. “That’s ridiculous. But we can do it smarter. We want to stop wastewater injection wells.”

From the legal complaint: 

Under its Constitution and laws, the Pawnee tribal government must: ensure that a sufficient supply of good quality water is available to satisfy all present and future tribal uses; safeguard the quality of the available water supply to prevent irreparable destruction of that natural resource from contamination; protect the best interests, health, safety and well-being of its members; and ensure that all foreign corporations doing business in tribal jurisdiction comply with tribal law. 

Knife Chief and the Pawnee Nation are also concerned about a lack of accountability for energy companies when they act in bad faith, participate in fraud, and don’t compensate the landowners for the water or timber.

“[Crown Energy’s] application to drill said they would take water from surface ponds, but there are no surface ponds around there to support that type of fracking activity,” Knife Chief said. “The guy who signed away the water rights to the OCC for a permit for taking water from the Cimarron River was a lease holder, not the land owner. So there was fraud. Our local BIA superintendent went down and assessed Crown Energy $40K in fines for violations and the Pawnee Nation assessed some fines, as well, but we realized there is not mechanism to keep these producers accountable. We can fine them all day long, but my guess is the big producers have fines and fees as line items in their budget.

“We’re not against oil and gas,” he continued. “We just have too many wildcatters out there. Too many people who are skirting the rule of law and doing some dangerous activity. Why can’t the Pawnee nation forward on to our BIA or EPA administrators and say ‘hey, you need to prosecute this,’ and they forward it on to the DOJ? There needs to be a process for that.”

Besides potential water contamination, the Pawnee are also concerned about the uptick in earthquakes as a result of wastewater injection wells. 

The tribe was already looking into the amount of wells on its land when Oklahoma was named the earthquake capital of the world in 2015. 

Energy companies in Pawnee County (among other counties) are drilling into the Mississippian Lime formation. Aside from it being a notoriously briny formation, which could contaminate the creeks, rivers, and shallow aquifers on which the community depends, the formation is also on a fault line that runs through Oklahoma City. Knife Chief referred to it as the New Madrid Fault because the U.S. Geological Survey told him that it has “New Madrid potential,” referring to the New Madrid Seismic Zone in southeastern Missouri that in 1811 and 1812 produced the most powerful earthquakes to ever hit the contiguous United States, with magnitudes ranging from 7.3 to 8.

The Pawnee Nation’s litigation has brought to light cracks in the system for approving energy leases on Indian land and underscored the ongoing concern regarding the serious impact UIC wells are having on Oklahoma’s seismic activity.

“We’ve just scratched the surface,” Knife Chief said. “We’re playing catch-up right now. The technology in this field has increased exponentially in the past years and the policies that the state and federal government have been operating under are inadequate to address this type of activity.”

The lawsuit cites technology and related policies, too:

The intensity, scale and complexity of modern hydraulically-fractured wells far exceed the conventional development that has occurred in the past. Companies today drill wellbores that are nearly three miles long and where fracturing uses millions of gallons of water per well. The associated surface disturbance, traffic, noise, air pollution, and accidents also have major impacts on surrounding communities and their natural resources. Most dramatically, geologists have concluded that disposal of hydraulic fracturing wastes can cause earthquakes. 

Aside from having the potential to nationally impact how the BIA and BLM approve leases and permits in Indian country, this lawsuit may also impact the amount of wastewater injection wells—and earthquakes—we have in Oklahoma.

For more from Liz, read her article on Arts Alliance Tulsa.