By KAY MATTHEWS
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.
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.