Part I of a series is a cautionary tale about fracking for crude on the Fort Berthold Indian Reservation in western North Dakota. It is a story about communication between state and federal agencies and treaty obligations that are sometimes met, and occasionally ignored.
Prairie sunflowers swayed in the late afternoon August light while Lunker Federal #2-33-4H clanked and moaned as she pumped fracked Bakken crude for the Slawson Exploration Company. Somewhere, hidden on the golden shoreline, Piping Plovers protected by the Endangered Species Act of 1973 were raising their young. The blue waters of Lake Sakakawea shimmered like a mirage in the low humidity of the hot summer afternoon and formed the perfect backdrop for a cautionary tale about fracking for crude on the Fort Berthold Indian Reservation in western North Dakota. It is a story about communication between state and federal agencies and treaty obligations that are sometimes met, and occasionally ignored. In this case, it is not so much about what is happening underground, but what is overlooked on the surface. The story is about development colliding with sacred traditions, the power of greed, and the future of a people. The ending is not written yet, but the arc of the story is ominous in its beginning.
Pumping oil to the surface eight months after the blowout
Fracking is the method by which vertical and horizontal drilling into the earth’s surface at depths of a mile and more, combined with the injection of water and chemicals, creates channels in rock and shale which release gas and oil. A well is considered to be producing when it is successfully pumping oil to the surface. The gas can be captured or burned off in a process known as flaring.
Fracking is extremely controversial and criticism can be environmental; ranging from ground water contamination, the danger of blowouts, and the destruction of fresh water sources. Spiritual considerations involve indigenous religious beliefs that tribes have a covenant with the Creator to protect Mother Earth from the insult of drilling into her surface.
“To frack or not to frack” is not germane to this discussion. It is already happening and there is no real possibility it will end anytime soon. The challenge to Fort Berthold, the people of the affiliated tribes living there, the tribal government, and federal agencies assigned to “caretaker” roles is one of responsible management, transparency, and communication.
As of August 15 the number of rigs drilling on the Fort Berthold Reservation is up to 22 with 6 on fee lands and 16 on trust lands. There are now 979 active wells; 111 on trust lands and 868 on fee lands. The active wells are producing 256,726 barrels of oil per day; 88,330 from trust lands and 148,895 from fee lands. 148 wells are not yet complete. There are 262 approved drilling permits; 252 on trust lands and 20 on fee lands.
Frank Jr. Molley of Honor the Earth at Lunker Federal #2-33-4H
On December 12, 2012, an oil and natural gas “event” produced a 40-50 foot geyser of Bakken crude oil mixed with salt water. The Slawson Exploration company, according to a complaint (Case No. 20012) filed by the North Dakota Industrial Commission (NDIC), was performing a clean out operation on the well by removing hydraulic fracturing material in order to restore the well to a productive status. Pressure control equipment failed and caused a blowout triggered by a catastrophic release of subsurface pressure. Water, oil and gas continued to flow until two days later when a replacement blowout preventer was installed on the wellhead. The complaint was an administrative action requesting relief from Slawson for “violations of sections of the North Dakota Administrative Code (NDAC) governing the oil and gas industry.”
In an April response, Slawson contested every last count leveled against them in the March complaint. Attorneys for Slawson included Count 6 in their argument for dismissal, and Count 6 was a statement of fact that the blowout occurred.
So the blowout never happened? Take a look at the video of the “event.”
The initial incident report (File 23105) from NDIC said 800 barrels of oil and 400 barrels of fracking brine were released in the blowout. A subsequent February 14, 2013 progress report on the cleanup, prepared for Slawson by the environmental engineering firm, Lowham Walsh LLC, put the number at 1500 barrels. One barrel equals 42 US gallons, so think about what 63,000 gallons might look like. A recent local print newspaper report (BHG News) revised that number upward to 66,000 gallons, but it was unattributed. For a visual, think about what 1300 bathtubs or one swimming pool, 20 feet wide, 44 feet long and 10 feet deep looks like. Now imagine that amount of brine and oil sprayed into the air.
The local press covered the event, but reporters relayed an official message that soothed anxious observers and investors into believing that there was no threat to the lake or the environment.
Bismarck attorney and blogger Chad Nodland thought there was more to the story and his blog post painted a much different picture.
Hey, wait a minute! I thought all the news stories said the wind blew the poisonous fracking liquids away from the lake! I thought all the newspapers and radio and TV told us the oil and poison blow-out was contained to the well pad and an area around it surrounded by a berm! And a guy in state government says, “it is a lot worse than has been reported” in the press and oil sprayed out 4,100 feet onto the lake?!? Forty-one hundred feet is more than three quarters of a mile. That’s like nine (9) city blocks. The news reports suggested the well is “1/2 mile north of the lake.” A half-mile is 2,640 feet. So they’re saying the well sprayed 6,740 feet?!? I thought the news stories said the mist only blew 2,000 feet to the southwest, and only 1,500 feet to the northeast.
“A lot worse than has been reported in radio and print media.”
And it was.
A letter from the Army Corps of Engineers (USACE) to the U. S. Fish and Wildlife Service asks for staff assistance in clean-up of public and private lands at the Van Hook Recreation area, as well as “subsequent clean up efforts to be conducted on Lake Sakakawea.”
According to the March 2013 correspondence from USACE, the ruptured oil well had sprayed material onto private and public lands adjacent to the site. The original PDF is no longer available on the web. A partial screen shot of the cached letter is shown here.
Screenshot by Georgianne Nienaber
So, the wind was not blowing the mist away from the lake as reported by the Minot Daily News and others.
In fact, a site visit report prepared by the Corps of Engineers (COE) on December 14 and 17 describes a “strata of crude/snow mix that ranged in thickness from one half to one inch. “Crude was identified as (a) yellow/orange layer of snow.” The crude extended approximately 4,100 feet into lake Sakakawea, and half was on ice. Oil was observed on the snow, ice, bare ground and trees.
USACE Drawing of Blowout by USACE
An emergency containment plan was put into place that included snow removal, water barriers to prevent spring run-off from further contaminating the lake, and continual monitoring of the remediation process. An initial progress report was issued by an environmental consulting firm hired by Slawson.
In March 2013 the consulting firm prepared a contamination-sampling plan for Slawson. The lab report was issued on June 20, 2013 and showed elevated levels of Trifluorotoluene and Fluorobiphenyl compounds. Both are toxic to aquatic organisms.
Who was responsible for cleanup? Is it the tribe, the landowner, the well owner, or the federal government?
An understanding of land use definitions as they apply to the enforcement of Federal, State and Tribal Laws is critically important. The federal government holds legal title to “trust land,” but the beneficial interest remains with the tribe or individual Indian. The land cannot be encumbered or conveyed without the approval of the United States and can never be sold. “Restricted fee” means the tribe or individual Indian holds legal title to restricted fee land, but there are legal restrictions against alienation or encumbrance. This land can be conveyed or sold only with the approval of the United States. “Fee Simple Absolute” refers to historical tribal territory that tribes have purchased back from non-Indian owners.
Since the blowout occurred on sovereign land, federal and state jurisdictions for the cleanup and analysis of what went wrong fell to the EPA, the USACE and the North Dakota Game and Fish department.
Although The North Dakota Department of Health is not actively involved in overseeing the clean up of the Slawson blowout, Environmental Technician Kris Roberts, who was on the initial Van Hook site inspection, responded by email to questions about soil testing and the subsequent follow-up.
“The incident occurred on Sovereign Native American Land. We respect the sovereignty of the MHA Nation. We do not have direct jurisdiction there. We have been in liaison with the MHA Nation, US EPA, US Corp of Engineers, the US Fish and Wildlife Service (which have various jurisdictions within MHA Nation boundaries), and the North Dakota Game and Fish Department, which have an interest, as they are the managers of the Wildlife Management Area that was impacted. The MHA Nation and the State of North Dakota are neighbors, and as neighbors, the (North Dakota) Department of Health stands ready to assist or advise our sister agency upon request. Our mission is protecting public health and the environment, and we share that responsibility with our Native American neighbors. We are following what has, and is being done, in the event that MHA Nation requests our assistance or advice.”
The MHA Nation appears to have a friend in a State agency that, unfortunately, does not have direct jurisdiction over environmental concerns. At least six tribal and federal agencies as well as the private interests of the Slawson Exploration Company were directly involved in the blowout of Lunker Federal #2-33-4H and its aftermath.
A minimal analysis of the events and inter-agency communications resulting from the Van Hook blowout reveals the complicated chain of communication that results from shared jurisdictions: state, local, and federal in Indian Country. Without taking into account the social, environmental and cultural concerns raised by oil and gas development on Indian lands, it is clear that the cautionary chapter has not been closed on Lunker Federal #2-33-4H.
Fort Berthold is a prime exploration area for the Bakken Formation. The ND Oil and Gas Production Report for June 2013 provides production data and says $14,715,894.23 in oil revenue was distributed to the MHA Nation in December 2012.
How has this money benefited the residents? Why are tribal members suggesting in social media that they have no say in what is happening?
The dichotomy is clear. Will development be completely unmanageable and destructive? Is the unfinished story of Lunker #2-33-4H simply an example of inter-agency conflicts, and communication issues? Or, is there malfeasance and inequity involved at tribal and federal levels?
The future of Fort Berthold lies in the hope that relief can indeed be granted before the Nations face a complete social breakdown due to runaway development, environmental degradation, and the loss of ancient spiritual and cultural ties to the land.
Historical Trauma
The discharge of Bakken crude into Lake Sakakawea, besides threatening an already endangered water supply, represents renewed historical trauma as the Tribes face spiritual and cultural insults to their way of life.
Historical memory fades with time and unless you are a member of the Three Affiliated Tribes you may not know that the shimmering waters of Lake Sakakawea represent the first body blow to tribal society.
The Fort Laramie Treaty of 1851 awarded over 12 million acres to the Three Affiliated Tribes– the Mandan, Hidatsa and Arikara Nations. A separate 1886 treaty reduced the holdings to less than one million acres that included the nations’ most sacred sites and rich agricultural and ranching lands that formed the core of their economy. The tribes were successful in utilizing the rich Missouri River soil to the extent that they were “in sight of complete economic independence,” according to the 1949 House Subcommittee on Public Lands.
1949 was also the year that the federal government initiated the Garrison Dam Project, which dammed the Missouri River and damned the people.
156,000 acres of prime agricultural land were flooded, along with sacred sites, homes and burial grounds. Lake Sakakawea is a reservoir and did not exist before the completion of the Garrison Dam project in 1956. Through a combination of lawsuits and Congressional Acts, the Three Affiliated tribes had just begun to recover from the historical trauma and insult of the flooding when fracking offered access to the shale oil locked in the Bakken Formation.
Raymond Cross, a law professor at The University of Montana School of Law, asks the existential question. Will the Three Affiliated Tribes “prove to be development’s victim or its beneficiary?”
The challenges are substantial. Success or failure depends on whether or not Fort Berthold can control its destiny. Is the reservation really a sovereign nation, or is it painfully dependent upon its relations with the State of North Dakota and the federal government? Are the federal Indian “trust” agencies: the Bureau of Indian Affairs, the Bureau of Land Management and the Environmental Protection Agency worthy of trust during the current oil boom?
With the potential of 2,390 additional wells, 1,510 on trust lands and 880 on fee lands, reason dictates that the story of Lunker Federal #2-33-4H will be repeated. It is not a question of if, but when there will be another “event.” How many and how devastating is anyone’s guess.
The environmental, legal, historical, societal and religious intricacies are a maze of confusion for tribal members. Meanwhile, Lunker Federal #2-33-4H continues to groan along the shores of beautiful Lake Sakakawea and the jury is still out on what, if anything, has been learned from her history.
Obtaining access to the reports, complaints, discussions, and remediation efforts is still ongoing and incomplete. How can tribal members be expected to know what is happening without complete transparency and access to federal, state, and tribal data bases?
Fort Berthold could be sitting on three hundred billion barrels of oil. What does this mean for the community, and how will tribal government ensure that the legacy of oil does not destroy what a brutal history could not?
Next: Part II: An Elder Speaks About the Peoples’ Right to Know
Reports in this article were obtained by request from North Dakota Game and Fish, the State Oil and Gas Division, and private individuals. Other agencies involved in the follow-up to the Van Hook well blowout, besides the COE, include the Bureau of Land Management (BLM), the North Dakota Game and Fish Department, the Van Hook Wildlife Management area and the Three Affiliated Tribes of Fort Berthold.
Frank Jr. Molley of Honor the Earth assisted in the compilation of this report.