Climate Change, Commons, Environmental Justice, Environmental Regulation, hydraulic fracturing, Law and Courts, Mora County Politics, Oil and Gas, San Miguel County

Mora County Ordinance Banning Oil and Gas Development Challenged in Court

By KAY MATTHEWS

Mora Valley from Holman Hill. www.flickr.com photo

Mora Valley from Holman Hill. http://www.flickr.com photo

To no one’s surprise the Mora County Commission is being sued by the oil and gas industry over its “Mora County Community Water Rights and Local Self-Government Ordinance” that makes it unlawful for any “corporation to engage in the extraction of oil, natural gas, or other hydrocarbons within Mora County.” The Independent Petroleum Association of New Mexico, along with a small land owner and the Yates Ranch Property LLC, owners of the 125,000 acre Ojo Feliz Ranch, filed suit in federal court in Albuquerque on Monday, November 11.

 As we previously reported in La Jicarita, last May Mora County decided to adopt the “Bill of Rights” ordinance, as it is commonly referred to, instead of a regulatory ordinance that had been drafted while a oil and gas development moratorium was in place. The Community Environmental Legal Defense Fund (CELDF) based in Pennsylvania, an environmental organization that works to ban factory farms and oil and gas development, particularly that of hydraulic fracturing, or fracking, provided the “Bill of Rights” template for the Mora ordinance and consulted with the commission chair on the wording included in the final version. CELDF works in a national arena and sees itself as taking the high road, a radical approach to social change that asserts the “rights” of communities and ecosystems and works towards “federal constitutional change.”

When the county passed the Bill of Rights Ordinance many expressed concern that it would be challenged in court, and initially CELDF agreed to act as legal counsel if the county was sued by the oil and gas industry. The county has now also retained the New Mexico Environmental Law Center (NMELC), although according to Eric Jantz at NMELC the county has yet to make a final decision regarding representation. This decision must be made soon as the county has 21 days from the delivery of the lawsuit—last Tuesday—to respond.

Jantz told La Jicarita that the suit makes several complaints regarding the Ordinance:it violates the corporations’ civil rights, which is a radical claim largely based on the Citizens United Supreme Court decision that recognizes corporations as having the same free speech rights as individuals; is unconstitutional; is a preemption of the state mandated Oil and Gas Act; and is a violation of due process.

I asked Jantz if there would be any legal problem with the county taking up the zoning regulations it had previously been drafting as a backup plan while the lawsuit moves forward. While NMELC hasn’t been involved in any conversations regarding this idea with the county commissioners, he said he wouldn’t be surprised if was put forward as a possible scenario.

Drilling site. photomacriverkeeper.org photo

Drilling site. photomacriverkeeper.org photo

One can only speculate on the outcome of this particular lawsuit as well as the implications it may have on the future of self governance with regard to oil and gas development. While across the country several bans on fracking have stood up to industry challenges, here in New Mexico there haven’t been any challenges to regulatory ordinances or bans until the Mora County lawsuit. Strict Santa Fe County regulations have discouraged producers from jumping through its many hoops to access resources that may not be worth the kind of herculean efforts needed to develop them. Rio Arriba County has enacted regulations that divide the county into two areas that differ in the strength of regulation based on whether there is already significant development taking place. San Miguel County is currently promulgating its draft ordinance with the help of Robert Freilich, a planning and zoning attorney who has drafted many oil and gas ordinances around the country, including the Santa Fe County Ordinance.

Even with this Mora challenge to what many see as a much more vulnerable Ordinance than one based on zoning regulations, it’s hard to know if the lawsuit is based on the potential loss of oil and gas resources in Mora County or to make the ideological statement that the industry is not going to stand by and watch counties and municipalities implement their own restrictions. One of the legal representatives for the plaintiffs is the Mountain States Legal Foundation, a conservative/libertarian legal advocacy law firm.

The association that filed the lawsuit, the Independent Petroleum Association of New Mexico is not the big gun, the New Mexico Oil and Gas Association. Janz told me that it’s comprised of smaller producers and wildcatters. But the entire industry has been working the political scene for years to force the state to take action to enjoin counties or municipalities from enacting their own regulations. State Senator Carlos Cisneros introduced a bill last year that proposed doing exactly that but elicited overwhelming opposition.  

The county will be meeting in the next few days to make a decision regarding its legal representation; La Jicarita will continue to follow the story.

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About lajicarita

La Jicarita is a community journal that advocates for land based communities and sustainable use of public land resources in northern New Mexico. http://www.lajicaritanews.org

Discussion

3 thoughts on “Mora County Ordinance Banning Oil and Gas Development Challenged in Court

  1. STAND YOUR GROUND MORA COUNTY. THIS IS BUT ANOTHER ATTEMPT TO SUBVERT CITIZENS RIGHTS TO SELF GOVERNMENT AND A CHEAP POWER PLAY TO INTIMIDATE AND OVERRIDE OUR CONSITUTION AND BILL OF RIGHTS IN THE NAME OF GREED AND PROFITS. AND CORPORATIONS ARE NOT PERSONS NO MATTER WHAT THE SPIN-MASTERS SAY OR DO AND THIS INSANITY MUST BE REVERSED BEFORE WE ARE ALL ROBBED BLIND BY CASINO CAPITALISM !

    Posted by joseph hempfling | November 19, 2013, 9:38 am
  2. Mora County has allowed itself to be used by anti-private property advocates and may pay a dear price. I have studied the Ron Broadhead report on the area and don’t believe it is a prime prospecting area. it would be a shame to rip up the land to find only marginal oil resources. Natural gas is not worth developing now. But some in Mora County want to see development. And others own underground oil and gas rights and have hopes of making serious money. So there really is a clash of interests. I think they would have been better off taking a regulatory approach. That would not prevent oil and gas development. Contrary to the belief of some, the Santa Fe Oil and Gas ordinance does not in any way preclude oil and gas development. I know because I helped write it. But it provides a lot of protection for residents.

    Some of the leases signed in Mora County require activity to maintain the lease. It might have been possible to combine all the leases into a “unit” and have a single well drilled to protect the existing leases. If that well had not been successful the problem would just go away. If successful, Mora would experience a lot of changes and like North Dakota there would be a lot of new millionaires. Not everyone objects to becoming wealthy.

    It is likely to cost Mora a lot of money and I doubt that it will become a major oil or gas basin during the next twenty years. So all that is going to happen IMO is Mora will lose and the oil companies will lose. That is the exact opposite of a Win Win.

    Mora has been had.

    Posted by Sigmund Silber | November 20, 2013, 12:17 am
  3. Meanwhile: ExxonMobil CEO resists water tower for fracking near Texas home (http://www.usatoday.com/story/money/business/2014/02/22/exxon-mobil-tillerson-ceo-fracking/5726603/) A proposal to build a 15-storey water tower to store water for hydraulic fracturing operations near the Texas home and other property of ExxonMobil CEO Rex Tillerson has the oil company CEO joining former U.S.House Majority Leader Dick Armey and his wife in a lawsuit to stop the project, claiming it would create “a noise nuisance and traffic hazards.”

    Posted by Baboso | February 24, 2014, 2:06 pm

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