By Jessica Knoblauch, Earthjustice
It was a typical summer day in 2015 when Walter Echo-Hawk, a member of the Pawnee Nation of Oklahoma, discovered fracking operations near his home on Pawnee lands about 55 miles west of Tulsa.
After stumbling upon a work crew surveying for a proposed pipeline, Echo-Hawk called the oil company responsible to find out more information. The company stonewalled him. He then contacted several government agencies. Eventually, Echo-Hawk learned the truth: Two years prior, regulators had approved 17 oil and gas leases on Pawnee lands. They didn’t bother to notify the tribe.
Echo-Hawk immediately began mobilizing fellow tribal members to fight the leases. But regulators at the Bureau of Indian Affairs and Bureau of Land Management said it was too late. The leases had already been approved. The agencies also claimed the Pawnee couldn’t take them to court because the tribe had failed to ask for reconsideration of those decisions when they were made.
The Pawnee, however, hadn’t been aware of the decisions because the agencies — in violation of their own rules — neglected to notify the tribe in any way.
Echo-Hawk was furious that federal agencies were treating Pawnee lands like “an oil and gas fiefdom.” After all, it was hardly the first time the U.S. government had run roughshod over tribal rights. In addition, the Pawnee were already gravely familiar with the threats posed by oil and gas drilling. Over the years, previous operations had left a legacy of contaminated groundwater and illegal wastewater dumping on tribal land.
“We aren’t against oil and gas production, but we are certainly against methods [that] hurt our land base, minerals and water,” wrote W. Bruce Pratt, president of the Pawnee Nation, in a press release.
In addition to water contamination, geologists have linked fracking to a surge in earthquakes, both in Oklahoma and across the country. In 2014, Oklahoma surpassed California as the most seismically active state in the lower 48. Oklahomans historically had felt an average of one or two sizable rumbles per year, but in the last few years, that number jumped to two or three per day.
Despite this threat, government regulators didn’t bother to address the earthquake risk when approving the leases. Nor did they address the impacts of drilling near the Cimarron River, a 698-mile cinnamon- and paprika-colored ribbon of water that supports a native fishery protected under Pawnee tribal law. The government authorized the oil and gas company to suck millions of gallons of water from the Cimarron for fracking. Regulators also approved drilling operations on the river’s floodplain, where a spill of oil or fracking chemicals could contaminate the Cimarron, which tribal members like Echo-Hawk rely on to recharge their domestic water wells.
In 2015, the tribe requested that the agencies issue a moratorium on all new oil and gas approvals on tribal land while concerns about earthquakes and water contamination were addressed. Despite the Nation’s request, and the ongoing earthquakes, regulators continued approving new operations like water withdrawals for drilling on the leases.
“It became apparent that the agencies were not inclined to be accountable to tribal or U.S. law,” says Echo-Hawk. So the Pawnee decided to contact Earthjustice.
In early September 2016, the tribe’s fears about fracking were realized after the most powerful earthquake recorded in Oklahoma history struck the Pawnee area. The jolt was also felt by six neighboring states.
“My house is made of brick and stone, and it shook as though it were made of straw,” says Echo-Hawk, whose home was among the many houses and administrative buildings badly damaged in the quake. Since then, several studies, including one from the U.S. Geological Survey, have found evidence linking fracking wastewater injections to earthquakes across the country.
Shortly after, Earthjustice filed a lawsuit against the Bureau of Indian Affairs and the Bureau of Land Management on behalf of the Pawnee Nation, as well as Echo-Hawk and other individual Pawnee members. Earthjustice attorney Mike Freeman says the Pawnee situation illustrates a larger pattern where the federal government violates the law by approving oil and gas projects on tribal lands without telling the affected tribes. The Bureau of Indian Affairs, for example, has used a similar maneuver in recent years in New Mexico, Maine, and on tribal lands in Oklahoma.
“Our government has run roughshod over the rights of Native Americans when approving oil and gas development,” Freeman said. “But the law requires federal agencies to respect tribal laws and sovereignty.”
In addition to the federal court lawsuit, Earthjustice asked the Bureau of Indian Affairs to reconsider its leasing decision through a legal mechanism known as an administrative appeal. In May, the agency’s internal review agreed with the tribe’s argument, determining that the Bureau of Indian Affairs violated the law by approving the oil and gas leases without informing tribal members and without examining fracking’s environmental impacts. The agency’s review invalidated three of the leases and declared another 10 expired and therefore no longer in effect.
Only four leases now remain, and the tribe, represented by Earthjustice, is elevating the issue to the national level by bringing the case to the Interior Board of Indian Appeals, a federal review body. At the same time, Earthjustice’s challenge against the Bureau of Land Management’s drilling permit approvals is moving forward in district court.
While some drilling has been approved on the four remaining leases, Freeman said they have the same legal defect as the leases that were already invalidated. As a result, he is hopeful the federal review board will strike down those four leases as well.
“The bureau has already admitted it violated the law in approving these four leases,” says Freeman. “They can’t now just turn a blind eye to those mistakes.”