Environmental Regulation, hydraulic fracturing, land grants, Law and Courts, Mora County Politics, Oil and Gas

New Industry Lawsuit and Land Grant Intervention in Mora County Over Oil and Gas Ordinance

By KAY MATTHEWS

Since I wrote in November of 2013 about the lawsuit filed against the Mora County Commission over passage of the Community Water Rights and Local Self- Government Ordinance, a second lawsuit was filed by SWEPI LP, a subsidiary of Royal Dutch Shell, on January 10, 2014. The ordinance, referred to as a “Bill of Rights”, prohibits oil and gas or other hydrocarbon extraction in the county. SWEPI currently holds several leases in Mora County, including one issued by the Commissioner of Public Lands for the state.

The Mora Land Grant and Jacobo Pacheco (also a member of the land grant) have filed to intervene in this second lawsuit, and the Mora County Commission recently voted to retain their attorney, Jeff Haas, to represent the county in this case. This intervention has yet to be ruled on by the court.

The initial lawsuit, filed by several private land owners and the Independent Petroleum LLC, is being handled by Thomas Linzey of the Community Environmental Legal Defense Fund (CELDF), the Pennsylvania-based organization that provided the template for the Mora County Bill of Rights; Eric Jantz of the New Mexico Environmental Law Center (NMELC) in Santa Fe; and a private New Mexico attorney. Because Linzey does not have a license to practice law in New Mexico, he is working under the “pro hac vice” (meaning “for this occasion”) legal agreement whereby he represents the county in association with a New Mexico attorney. According to Jantz, all of the attorneys in this lawsuit are working together as the discovery process moves forward. A summary judgment motion must be heard by February 15, 2015; if not, the case would go to trial and extend the process by six months.

This initial lawsuit makes several complaints regarding the Ordinance: it violates the corporations’ civil rights, which is a 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.

The second SWEPI LP lawsuit makes similar claims: that corporations have the same rights as individuals and are insured “equal protection under the law”; that the ordinance is unconstitutional under the Supremacy Clause of the U.S. Constitution (Article VI, Section 2 of the Constitution that establishes it as the “supreme law of the land”); that it violates the dormant Commerce Clause of the United States Constitution (which prohibits the states from restricting interstate commerce); is a violation of due process; violates and preempts New Mexico state law; and “effects a compensable taking” (rather than a categorical regulatory taking of the Plaintiff’s property).

In an interview with La Jicarita Eric Jantz said, “I think we have good arguments to counter what they’ve alleged. What they’re claiming is pretty radical.” This may be the first test of the constitutionality of this kind of Bill of Rights ordinance that explicitly prohibits corporations from engaging in exploration or drilling on county lands. Lawsuits in New York have been brought forward to challenge the validity of local ordinances based on state laws, not their constitutionality.

The fact that the county put itself in this legal position has been controversial to begin with, and with the intervention of the land grant it becomes even more so. Paula Garcia is president of the land grant as well as a county commissioner and voted against passage of the Bill of Rights ordinance, stating that she felt it would leave the county vulnerable to lawsuits, which has now happened. In a statement sent to La Jicarita she says: “While it [Bill of Rights Ordinance] gives the county and well-intentioned advocates an opportunity to make some good faith arguments about injustices in the US legal system, the ordinance probably would not result in actual protections because of the likelihood it would be overturned through a legal challenge.”

Garcia was in agreement with other community members in Mora and San Miguel counties who would have liked to see a “belt and suspenders” approach that combines long and short term strategies, which include regulations and site specific banning so that if one component is struck down by the legal system there is a backup in place to protect both counties.

I spoke with Jacobo Pacheco, the Mora Land Grant member who also filed as an individual to intervene in the SWEPI lawsuit. Pacheco was elegant in his defense of the Bill of Rights ordinance as the best way to save the land and resources that mean so much to him as a lifelong resident and outdoor enthusiast. When I asked him about Garcia’s role as both a county commissioner and member of the land grant he said she voted against both the land grant’s intervention and the retention of Haas as the county’s attorney, and that she’s “on the other side.”

Garcia explains her opposition to the land grant’s intervention: “While I believe the Mora Land Grant, as a historical and contemporary body, has a legitimate interest in the oil and gas issue, I was not supportive of the intervention because of potential conflicts between the interests of Mora County and the Mora Land Grant. . . . As an intervener in the SWEPI litigation, the Mora Land Grant would not share in the responsibility of costs but, on the other hand, would advance its own interests, which could complicate and extend the litigation, thereby potentially increasing the costs to the county. The result in the end would likely be higher costs and an overturned ordinance.”

As Garcia says, the situation in Mora is complicated. There is already “internal fracturing” that may affect how well the county is able to defend itself against the lawsuits. And while the community is divided on what strategy would have been best to protect the Mora Valley land and water, the county must defend the ordinance but also be prepared for the possibility that the ordinance is not upheld by the courts.

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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

2 thoughts on “New Industry Lawsuit and Land Grant Intervention in Mora County Over Oil and Gas Ordinance

  1. A few years ago I was very interested in banning fracking because I had concerns that an oil spill in Mora could pollute water all the way to the Mississippi River and cause significant environmental damage. I talked to many land owners and to my surprise found that about half were interested in exploring their mineral right and receiving some economic benefits. In fact, I know some that are already receiving economic benefits.

    We currently enjoy using our lands for farming, ranching and building our dream homes. However, we have to follow rules and regulations to use our lands properly. For example, there are rules for drilling water wells and drillers have to be licensed and follow drilling rules. Also, there are rules to install septic tanks for our homes that must be followed. Without these best practices we could not enjoy the benefits of our lands. Rules have been developed by counties like Santa Fe and Rio Arriba that are workable and protect our environment. If the proper rules are in place, land owners and county citizens can benefit. We have to be practical in our approach and develop rules that work for the conditions in our county.

    However, the path that the county has chosen could lead to bankruptcy just to prove a point that is not supported by our constitution. We are just being used to prove a point that is going to be costly to the county. I suggest we have a county referendum on the issue because; we the taxpayers are paying and will have to pay the damages if we lose.

    Please note that we are going up against very powerful corporations that contribute significant revenue to our state government and provide the basis for capital outlay project funding that Mora County enjoys. The county received significant severance tax funding in the last legislative session which comes from extractive industries.

    I was part of the group that developed the original ordinance. However, I withdrew after the group decided not to receive any outside input from environmental groups or people in the industry.
    s/s Harold Trujillo

    Posted by Harold Trujillo | April 29, 2014, 12:30 pm
  2. This is a good article with a good summary at the end showing that different people who are committed to Mora County have different ideas about what steps are actually going to work to protect Mora County. Some people think that the ordinance is going to get overturned in the courts, and others don’t — only time will tell. And hopefully, whatever happens, the people of Mora County will not end up paying a big litigation bill out of their county budget. The only disappointing thing in the article was someone who was quoted questioning the intergity of one of the County Commissioners. Anyone who knows Paula Garcia and what she has always stood for knows that she stands for protection of the land and water in Mora County and throughout the state. Individuals may disagree with her, but no one can question that she is doing what she honestly believes is best for the people of Mora County. We will see if her approach to the ordinance would have been the better approach, and more defensible.

    Posted by David Benavides | April 30, 2014, 9:04 pm

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