An appeal that sought to quash drilling permits for a well pad that the MHA Nation says is too close to the shore of Lake Sakakawea should not have been filed in the District Court of Washington D.C., a federal judge has decided.
Judge Christopher Cooper ruled that the tribe’s appeal should be heard in the District Court of North Dakota, which he said is more familiar with both the parties and the particulars of the case.
That will land the case back in the same court before a judge who has already ruled once in the case, overturning a stay that the Internal Board of Land Affairs had granted the tribe while it engaged an administrative appeal of the drilling permits.
The permits for Slawson Exploration’s Torpedo well pad were themselves ultimately upheld, so the tribe then filed to appeal them, but in a D.C. court.
MHA Nation attorneys said their appeal should be heard in the D.C. court because of the special “nation to nation” status between the tribe and the United States, and because of potential national precedents that the case might set, since it concerns tribal lawmaking authority and the federal government’s duty to enforce compliance with those laws.
They had also suggested that the DC court is a more appropriate venue since Lake Sakakawea flows into the Missouri, a major national waterway, that runs through several states.
“While the Missouri River is undoubtedly a national waterway, this case concerns only Lake Sakakawea and its immediate environs,” Judge Christopher R. Cooper wrote. “And the tribe fails to explain how a spill resulting from drilling operations in the lake would likely affect sections of the Missouri river beyond those environs, let alone states other than North Dakota.”
The judge conceded that the tribe’s appeal of permits granted by the Bureau of Land Management will turn on the tribe’s authority to impose setbacks on non-fee, private lands and minerals lying within the borders of the reservation but not owned by the tribe. But he disagreed that the potential national implications outweigh the local interests of residents in the state.
“The court need not take a position on the merits of the Tribe’s argument,” Cooper wrote. “It suffices here that the issue involves a straightforward application of Supreme Court precedent to specific facts concerning the health and safety risks of Slawson’s drilling operations. That is not a matter of generalized national concern.”
North Dakota residents, including members of the tribe, have significant local interest in the case, and the District of North Dakota is “perfectly capable of addressing any broader issues that arise,” Cooper added.
“The District of North Dakota is already familiar with the parties and the facts in this case, and contrary to the Tribe’s assertion, has already considered many of the Tribe’s substantive arguments,” he wrote. “Although the District of North Dakota considered an interim administrative stay order, rather than the final denial of the Tribe’s appeal as here, the court necessarily had to determine whether the Tribe or Slawson was likely to succeed on the merits of the administrative appeal when deciding whether to issue the (temporary restraining order).”
That included a determination of whether the MHA Nation had civil jurisdiction over Slawson, or the BLM, under existing case law.
The case against Slawson’s Torpedo project in Mountrail County, which is now already completed and operating, centered around a series of oil wells located on a pad about 600 feet from the shore of Lake Sakakawea. State, federal and private minerals are involved, but with surface rights on private land that is within Fort Berthold.
The unusual situation came about because tribal land was flooded to create Lake Sakakawea. The tribe couldn’t be given privately owned land, but was given a portion of tax revenue on private land in the area, to make up for the tax revenue they would be losing.
Slawson, for its part, had taken extra measures at the site to allay concerns with the project. They erected a sound barrier at the site, and took a number of other mitigation steps for the project, which began in 2011 and included seven public hearings.
The MHA Nation subsequently passed a resolution requiring wells to be 1,000 feet from the lake, and asked the Internal Board of Land Appeals to review Slawson’s permits, contending that the Bureau of Land Management must honor tribal law in that area.
The IBLA granted them the requested stay against drilling, but it was reversed by a North Dakota District Court, which said the company had a good chance of succeeding on the merits of its case, and that it would suffer substantial economic harm if the injunction were allowed.
Slawson had already spent $3.8 million developing the well pad at the time.
Slawson CEO Eric Sundberg was pleased with the D.C. Court’s decision.
“Tribal law doesn’t apply to private land with private minerals, with no tribal surface or minerals in the project,” Slawson said. “Basically, that is the issue at hand. Applying tribal laws to a project in reservation boundaries, but that happens to be on private land.”
Despite the legal issues surrounding the contentious case, Slawson said the project, with all the extra measures taken by the industry, has been a success.
“It’s just another highlight of some of the great things that our industry can do as far as limited footprint and safe operations,” he said. “It’s really a tribute to the technological advances we have experienced over the last five years.”