Ian Shavitz Talks Fracking on Tribal Lands with Law360

Akin Gump public law and policy senior counsel Ian Shavitz has been quoted by Law360 for its article “Fracking Rule Favors Enviro Concerns Over Tribal Businesses,” on a Bureau of Land Management (BLM) rule that may favor environmental concerns over tribal mineral lease revenues.

According to the article, some Native tribes believe that the rule, which governs hydraulic fracturing, or “fracking,” wrongly applies standards for federal lands to tribal lands.

Shavitz, whose practice includes environment, natural resources and land for American Indian tribes as well as project development and finance for Indian tribes, said that the government’s position regarding its ability to apply the fracking rule in the same way to tribal and public lands may reflect the Obama administration’s emphasis on the environment: “If you have an administration like we have now that is very focused on environmental protections, it's not surprising that the executive agencies will argue they have discretion or lack discretion to meet the administration's overarching goals and objectives.”

He added that the Ute tribe, which is challenging the BLM rule in federal court, not only holds that the federal government is violating its duty as a trustee for the tribe to extract maximum value from tribal mineral leases, but also raises questions about the special importance that oil and gas development has on tribal, as opposed to public, lands.

Shavitz noted that the criticism of the BLM rule springs from the fact that it decided “right off the bat all lands should be considered the same and have the same regulatory rules without considering the unique circumstances of the tribes and how particular rules would affect the tribes.”

He did note that, should the tribe convince the judge that tribal and public lands should be treated differently with respect to the fracking rule, it would represent a significant win: “If they get their way and this rule only applies to public land, they haven't leveled the playing field with federal lands, they've actually given themselves an edge.”