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

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

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.