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Appellate Court Gives Trump Administration One Week to Decide Position on BLM Frack Rule

An appellate court gave the Trump administration one week to decide whether to defend an embattled rule governing hydraulic fracturing (fracking) on public and tribal lands.

On Thursday, the Tenth Circuit Court of Appeals in Denver issued an order requesting attorneys for the Department of Interior (DOI) and its Bureau of Land Management (BLM) give a response by Wednesday. Oral arguments in the case are currently scheduled for March 22.

"Given the recent change of administration and the related personnel changes in the Department of Justice and the DOI, the court is concerned that the briefing filed by the federal appellants in these cases may no longer reflect the position of the federal appellants," the court said.

"The federal appellants are asked to confirm whether their position on the issues presented remain the same, or have now changed. If the federal appellants have changed their position, the court would entertain motions for supplement briefing by the parties."

Last January, the courtgranted a request made in December by appellees in the case for more time to make their arguments. But in an unusual twist, the court also delayed the proceedings until March 22. The appellees include Colorado, North Dakota, Utah and Wyoming; the Ute Indian Tribe of the Uintah and Ouray Reservation; and the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA).

Mark Barron, an attorney with law firm Baker & Hostetler LLP representing IPAA and WEA, told NGI's Shale Daily that he was "grateful that the court is encouraging the government to reconsider their position, and we would be willing to work with them in order to revise or craft a more prudent and legal rule. But this action was done by the court on its own volition, and we are continuing to prepare to argue on March 22."

BLM first unveiled the rule in March 2015. The rule would require oil and gas operators to use the FracFocus registry to disclose the chemicals used in fracking and use above-ground tanks to temporarily store produced water, among other things. But U.S. District Court Judge Scott Skavdahl ruled in June 2016 that the BLM does not have the authority to regulate fracking. The government subsequently filed an appeal.

The Trump administration's options include continuing to defend the rule in court or dropping the appeal. But Barron said that even if the government withdrew their appeal, environmental intervenors would probably continue pursuing the case.

"Essentially, [the government] could withdraw their appeal," Barron said Friday. "I suppose they could say that they've reconsidered the district court judge's opinion. They could go back to the drawing board to see if there's something that they could do that wouldn't implicate some of the jurisdictional problems that the district court judge recognized, and initiate a new rulemaking."

DOI Secretary Ryan Zinke told lawmakers during his Senate confirmation hearing in January that he is "an all-of-the-above energy" supporter and backs energy development of all forms on public and tribal land. It is unclear what his position on the BLM's fracking rule is.

Officially, the legal dispute involves two companion cases: State of Wyoming et al v. Zinke et al [No. 16-8068] and State of Wyoming et al v. DOI [No. 16-8069]. The court substituted Zinke in place of former DOI Secretary Sally Jewell. Kristin Bail, acting director of the BLM, was also substituted for former BLM Director Neil Kornze.

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