By THE ASSOCIATED PRESS: MARCH 4, 2017
OKLAHOMA CITY — A Native American tribe here has filed a lawsuit in its own tribal court system accusing several oil companies of causing an earthquake that damaged near-century-old tribal buildings.
The Pawnee Nation alleges in its lawsuit filed Friday that wastewater injected into wells operated by the defendants caused the 5.8-magnitude quake in September. The tribe is seeking compensation for damage to public and personal property and market value losses, as well as punitive damages.
The case will be heard in the tribe’s district court, with a jury composed of Pawnee Nation members.
“We are a sovereign nation and we have the rule of law here,” said Andrew Knife Chief, the Pawnee Nation’s executive director. “We’re using our tribal laws, our tribal processes, to hold these guys accountable.”
Lawyers representing the 3,200-member tribe in north central Oklahoma say the lawsuit is the first earthquake-related litigation filed in a tribal court. If an appeal were filed in a jury decision, it could be heard by a five-member tribal Supreme Court, and that decision would be final.
“Usually tribes have their own appellate process, and then — and this surprises a lot of people — there is no appeal from a tribal supreme court,” said Lindsay G. Robertson, a law professor at the University of Oklahoma who specializes in federal Indian law.
Once a tribal court judgment is made, it can be taken to a state district court for enforcement just like any other judgment, Professor Robertson said, but that enforcement action would not subject the judgment to any appeals in state court.
Curt Marshall, one of the lawyers representing the Pawnee Nation, said the lawsuit was filed in tribal court primarily so that the Pawnee Nation could assert its sovereignty.
“The tribe has jurisdiction over civil matters to enforce judgments within its jurisdiction, including judgments over non-Indians,” Mr. Marshall said.
While experts say major civil judgments against non-Indians in tribal courts are rare, the United States Supreme Court last year left in place the authority of Native American courts to judge complaints against people who are not tribal members.
Scientists have linked the dramatic spike in earthquakes in Oklahoma to the underground disposal of wastewater that is a byproduct of oil and gas drilling. Oklahoma Corporation Commission regulators have directed oil and gas producers to either close injection wells or reduce the volume of fluids they inject.
The quake, located about nine miles from the center of Pawnee, Okla., damaged buildings across the north-central community of about 2,200 residents. The sandstone facade of some buildings fell and several others were cracked. One man suffered a minor injury when part of a fireplace fell on his head. Oklahoma’s governor declared a state of emergency for the entire county.
A lawyer for Cummings Oil Company in Oklahoma City, one of the companies named in the suit, declined to comment until the filing had been reviewed. Telephone messages left with a lawyer for a second defendant, Eagle Road Oil in Tulsa, were not immediately returned.
Chad Warmington, the president of the Oklahoma Oil and Gas Association, said that while the tribal jurisdiction was unique, the lawsuit itself was not a surprise.
“The oil and gas industry has been the target of significant litigation over the years, so I wouldn’t think it comes as a surprise that there could be potential new litigation,” he said.
Among the tribal structures damaged in the September earthquake is the former Pawnee Nation Indian School, a sandstone building on the National Register of Historic Places that houses the tribe’s administrative offices.
“We have extensive cracks throughout all the walls on every single one of these historic buildings, and the cracks run through the entire width of the walls,” Knife Chief said. “We had mortar pop. We had roofs sag. We have ceilings that are bowing.”
According to the lawsuit, both companies were operating wastewater injection wells on lands within the Pawnee Nation less than 10 miles from the epicenter of the Sept. 3 quake.
From 1980 to 2000, Oklahoma averaged only two earthquakes a year of magnitude 2.7 or higher. That number jumped to about 2,500 in 2014, then to 4,000 in 2015 amid a boom in hydraulic fracturing, or fracking — the process of injecting a high-pressure mix of water, sand or gravel and chemicals into rock to extract oil and gas. It dropped to 2,500 last year, after Oklahoma restricted the volume of wastewater injections, according to a new study by the federal Geological Survey. The agency reported on Wednesday in its annual national earthquake outlook that a large portion of Oklahoma and parts of Central California were at the highest risk for a damaging quake this year.
At least four class-action lawsuits have been filed by the same group of lawyers against various oil companies in Oklahoma connected to large earthquakes dating to 2011. Another lawsuit has been filed on behalf of a Prague, Okla., woman injured when a November 2011 quake toppled a stone chimney in her home.
“We understand the industry is very important to the economy of Oklahoma, and the last thing we want to do is come in and shut the operations down,” said Mr. Marshall, the tribe’s lawyer. “But we do want the oil and gas industry to act responsibly environmentally, and we want them to be held accountable for the damage they’ve created.”