A landmark decision delivered by the Trump administration late last month gives five oil and gas companies the green light to forge ahead in drilling 5,000 wells over the next decade in northeastern Wyoming.
Though cheered by state officials and industry groups, leaders of several tribal nations with enduring ties to the land remain concerned the development will compromise air and water quality, violate existing treaty rights and destroy cultural resources. The Oglala Sioux Tribe maintains that U.S. regulators “failed their duty” to uphold federal law and properly consult with tribes, calling the environmental reviews associated with the project “deficient,” according to recent protests.
The U.S. Bureau of Land Management issued a final record of decision for the Converse County oil and gas project on Dec. 23. The order followed the BLM’s completion of a roughly seven-year environmental analysis and allows for year-round drilling on federal leases in Converse County.
Yet, the southern Powder River Basin carries significant meaning for over a dozen tribes with extensive history in the region.
The colonization of the area by white settlers displaced Indigenous people onto reservations in the 19th century, severing them from their land. But cultural resources and sacred sites in the region remain. Multiple treaties also grant tribes rights to the land. Rivers within the project area serve as an important water source for the Oglala Sioux Tribe, among other tribes of the Sioux Nation.
Many tribal members said they fear the worst for the land, headwaters and cultural history in the region if drilling occurs at the scale proposed by the team of operators.
The BLM’s record of decision approves the construction of up to 5,000 oil and natural gas wells, 1,500 multi-well pads and hundreds of miles of gas and water pipelines, along with roads, electrical lines and other infrastructure on federal leases in the Powder River Basin. The operator group plans to use a variety of drilling techniques within the 1.5 million acre project area, cutting through federal, state and private minerals. About 53,000 acres, or 3.5% of the total area, are expected to sustain surface disturbance.
Wyoming lawmakers have expressed sustained and ardent support for the Converse County oil and gas project. It promises to bring up to 8,000 jobs and $18 billion to $28 billion in state and federal revenue, at a time when Wyoming’s fiscal outlook is dark.
But the project’s promised economic benefits to Wyoming do not relieve government agencies of their duties under federal law, according to the Oglala Sioux Tribe, a tribal nation based on the Pine Ridge Reservation. And although the U.S. Interior Department has signed off on the project, the Great Plains Tribal Water Alliance — a nonprofit organization representing the Standing Rock Sioux, Rosebud Sioux, Oglala Sioux and Flandreau Santee Sioux tribes — continues to oppose the project.
Trouble over consultations
Multiple federal laws technically do exist to protect the rights of tribal nations when companies vie to explore and develop public minerals. But many tribes with treaty rights said consultations and environmental reviews have consistently not resulted in meaningful changes to energy projects in Wyoming.
For some large-scale projects on federal land, the BLM undertakes an environmental impact statement, as required under the National Environmental Policy Act. In the case of the Converse County oil and gas project, the review included consultations with tribal nations.
In 2014 and 2016, the BLM sent letters to leaders of 13 tribes, offering them the opportunity to engage in government-to-government consultation on the Converse County oil and gas project. In 2018, the BLM held meetings with the Oglala Sioux Tribe, Cheyenne River Sioux Tribe, Crow Creek Sioux Tribe, Rosebud Sioux Tribe and Standing Rock Sioux Tribe, according to the BLM’s account.
But a protest filed on Aug. 31 by the Oglala Sioux Tribe reveals several issues remain unresolved.
In its protest, the Oglala Sioux Tribe said the BLM neglected to incorporate comments, collected during two tribal consultations, into its environmental reviews. What’s more, historical information provided in the final environmental impact statement was inaccurate, the protest stated. Federal regulators neglected to consult with Sioux spiritual leaders or historians when writing it; the tribal nation called for the BLM to hold another consultation.
The BLM did not provide direct responses to the majority of the Oglala Sioux Tribe’s letter. However, the bureau did state it “used the best information it had at the time.”
“The BLM did not intentionally include information in the (final environmental impact statement) that conflicts with OST (Oglala Sioux Tribe) history,” the agency responded. “The BLM strives to involve the tribes and sends the documents as they are publicly available.”
The bureau also said it followed federal law throughout the Converse County oil and gas project. And even with the record of decision approved, tribal consultations will continue, a spokesman for the agency said.
But to Kelly Fuller, energy and mining campaign director for the Western Watersheds Project, a conservation group, there’s a much larger issue at play.
“Tribal consultation is a highly troubled process to start with, because it often uses a lot of tribal resources and they don’t get anything back, but BLM gets to check its legal box,” Fuller said. “They take up a lot of the tribes’ time without resulting in meaningful differences.”
What’s more, it was unacceptable to continue the environmental review during the COVID-19 pandemic, which has hit tribal nations particularly hard, she said.
Oglala Sioux Tribe Vice President Tom Poor Bear, who signed the Aug. 31 protest against the Converse County oil and gas project, passed away in December from COVID-19, according to multiple news reports.
Although the federal government issued the record of decision approving the development of federal minerals in Converse County, several additional steps will still need to be taken before drilling or construction of well pads, access roads and other infrastructure can begin.
The BLM emphasized that tribal consultations would continue as operators moved ahead with development.
“Tribal consultation is an ongoing effort that will continue through all activities implemented under the Converse County Record of Decision,” Brad Purdy, a spokesman for the Wyoming BLM State Office, said in a statement.
For instance, operators will need to conduct site-specific reviews and apply for permits. When operators submit an application to drill, the BLM might undertake a “site-specific National Environmental Policy Act review, and that includes tribal consultation,” according to Purdy. If an environmental review is waived, the operators still need to meet the requirements under the National Historic Preservation Act, according to the BLM. The site-specific reviews involve the state historic preservation officer, third-party archaeologists and potentially tribal preservation officers. It’s up to the BLM to coordinate consultations with tribes along the way.
A section of the National Historic Preservation Act grants tribal nations with religious or cultural connections to land the opportunity to weigh in on proposed development to prevent the destruction of sacred cultural sites, historic and prehistoric resources and burials.
EOG Resources, one of the five operators involved in the Converse County oil and gas project, defended the steps it plans to take before breaking ground to protect tribes’ rights.
“EOG takes its commitment to our communities seriously, and that includes respecting tribal resources and honoring the cultural, social and religious beliefs and traditions of others,” the company said in a written statement to the Star-Tribune. “As part of this commitment, we proactively engage federal, state and local land management agencies in multiple jurisdictions and comply with cooperative cultural review and assessment protocols. Our goal in these efforts is to address site-specific concerns based on stakeholder input, local knowledge and cultural preservation best practices.”
But to Fuller, of the Western Watersheds Project, the tribal nations are still being placed in an unfair position throughout the consultation process.
“Who has time to monitor the applications of permits to drill for 5,000 wells?” Fuller asked. “No tribe has staff to do that. The public in general doesn’t have time to do that. Unless the federal government is providing money for the tribal nations to hire staff to monitor 5,000 applications to drill and all the other associated steps, it’s meaningless.”
Doug Crow Ghost, the chairman of the Great Plains Tribal Water Alliance Board and the Standing Rock Sioux Tribe, said the BLM did not provide an appropriate amount of time for meaningful consultations. Therefore, he and other tribal leaders have alleged the BLM failed to follow Executive Order 13175. The executive order, issued two decades ago, bans the federal government from promulgating rules or regulatory decisions that impact tribal nations without meaningful consultation with them.
“What is true consultation with the tribes?” he asked. “Including the tribe that I represent, the Standing Rock Sioux Tribe, it is very important that when you sit at the table with tribes, that you recognize their inherent sovereignty, but also the treaties that are still with the government and the tribes as sovereign entities of the nation.”
In another concern presented to the BLM, the Oglala Sioux Tribe noted the project area contains unidentified cultural resources at risk of being lost if energy development happens.
There still exists “potentially thousands of un-recorded/unidentified cultural resources and burials within the entire area,” of the project, the Aug. 31 protest noted. Surveys of the land undertaken throughout the environmental review process fell far short, the tribal nation said.
The tribal nation called on the BLM to require an “Indigenous Cultural Resource Management” firm, in addition to any third-party archaeologists, to complete the tribal identification phase survey. Without a trained tribal monitor, historically significant sites will be missed.
“The inevitable (destruction) and damage may well be perpetrated upon non-renewable cultural, religious, historic-prehistoric resources, along with the destruction of our sacred sites and burials because of the limiting (of) comments by OST (Oglala Sioux Tribe) and other tribes,” the protest continued.
The Northern Arapaho Tribal Historic Preservation Office in Wyoming has also been working to help the state identify and preserve traditional cultural resources, especially where energy development is proposed. Tribal monitors learn from elders to identify and interpret sacred sites before and during construction, the group explained, and experts work closely with the BLM and operators to ensure vast expanses of land are adequately surveyed.
Though the process could still be improved, progress is being made in collaborating with the BLM to protect the sacred sites, the group said.
“It’s very important for our offices to be involved, because we can identify those areas, and we’re learning from our elders how to identify and interpret sacred sites and cultural resources,” Deputy Director Crystal C’Bearing said. “It is getting better working with the BLM. It’s not perfect, but we’re making progress.”
Throughout the environmental review process for the massive oil and gas project, tribal leaders also protested the pollution to air and water caused by drilling.
The Great Plains Tribal Water Alliance — the group representing four federally recognized member tribal governments — has also submitted multiple protests to the BLM expressing concerns over potential violations of water rights held by the tribal nations if the project moves ahead as planned.
For one, the group argued that drilling in the project area would contaminate watersheds in the Missouri River basin, which the tribal nations hold water rights to. That includes the Cheyenne River, an important water source for the Great Sioux Nation, especially the Pine Ridge Reservation. The Powder River also holds great significance to the Lakota.
The federal government “failed to properly disclose the potential impacts to waters,” the alliance stated in its complaint.
According to multiple protests from tribal nations, the land within the Converse County oil and gas project area falls is treaty territory. Multiple Sioux tribes possess rights to it under the Fort Laramie treaties of 1851 and 1868, the protests noted. Accelerated development would compromise hunting, gathering, fishing and water rights within what the groups assert is unceded Sioux Nation Treaty land.
“Protecting our water rights from the headwaters to our affected areas of our nation and treaty lands is something that is very important to us,” explained Crow Ghost, the chairman of Standing Rock Sioux Tribe and the Great Plains Tribal Water Alliance Board. Several members of the Oglala Sioux Tribe echoed this position in interviews with the Star-Tribune.
“Tribal members utilize the Converse County project area for hunting and fishing, gathering of traditional foods and medicinal plants, ceremonies and gatherings related to historic events and military victories,” the protest noted.
Purdy, the spokesman for the BLM in Wyoming, said the bureau was not ultimately responsible for managing the impacts on water. That means future permits for disposing pollutant loads from produced water in waterways, or other requests would be reviewed by the state instead.
“Issues concerning water rights, boundaries and treaty rights are beyond the scope of this (environmental impact statement),” the bureau stated.
Instead, the Wyoming Department of Environmental Quality would likely be the government body responsible for issuing permits to discharge oil and gas wastewater into watersheds. The Department of Environmental Quality did not return a request for comment for this story.
To make matters more complicated, the BLM claims it ultimately has limited authority over a large portion of the project.
The total project area for the Converse County oil and gas project spans about 1.5 million acres. The BLM manages about 6% of the surface acres and 64% of the mineral estate in the project area. The U.S. Forest Service, state of Wyoming and private landowners have rights to the rest. Over half the land is split estate lands, meaning the surface and mineral rights are not held by the same owner.
In other words, the federal government will be limited in where it can apply cultural and environmental reviews, or tribal consultations, the agency said. The responsibility to respect the rights of tribal nations’ rights shifts to the operators, state and private landowners.
Tensions between private landowners and the BLM over land surveys and environmental reviews are not new in Wyoming.
Landowners have long balked at the time and resources required to complete consultation with several tribes. Operators have said they intend to respect Native American’s rights, but that the lengthy reviews can compromise projects’ feasibility. Oil and gas operators often hire third-party archaeologists to complete the surveys, and many must complete intensive environmental and cultural reviews, as required by federal law.
As a rancher, Sen. Brian Boner, R-Douglas, has been active in reforming the BLM’s approach to working with private landowners when conducting land surveys. Wyoming ranchers have largely eschewed allowing the federal government to protect cultural resources on private property.
“The BLM was being very disrespectful of the ranchers’ time, and you can imagine how much that complicates things when you have 13 sovereign nations also involved,” Boner said. “It’s a huge burden on the rancher. When we aren’t a multi-national oil and gas company, we just don’t have the time and resources.”
In its protest, the Oglala Sioux Tribe said it took issue with the BLM’s claim of limited authority on split estate issues. The tribal nation “protests landowners controlling disposition of our relative, their burial site and ownership of their grave goods or funerary objects,” according to comments filed with the BLM.
Meanwhile, drilling on private land in Converse County has boomed over the past decade, though the pandemic has slowed activities over the past several months.
“I think underneath all of this is the problem that the U.S. has never had a reckoning yet about the genocide of Indigenous people and the theft of their lands,” Fuller, of the Western Watersheds project, said. “We’ve never had that and we keep postponing that recognition. The longer we postpone coming into compliance with treaty rights, the more difficult it’s going to be.”
Treaty rights won’t simply go away with time, Fuller added.
The Great Plains Tribal Water Alliance plans to present its concerns with the Converse County oil and gas project to the incoming Biden administration.
Follow the latest on Wyoming’s energy industry and the environment at @camillereports