Commentary By KAY MATTHEWS
Things appear to have taken a 180-degree turn in Mora County regarding the Community Water Rights and Self Government Ordinance (CRO) banning oil and gas development. And not just because of the defeat in the primary election of County Commissioner John Olivas, the ordinance’s main proponent. Kathleen Dudley, New Mexico community organizer for the Community Environmental Legal Defense Fund (CELDF), the law firm that persuaded the county to adopt the ordinance as a test case, has left New Mexico for greener pastures.
Dudley originally helped found the anti-fracking group Drilling Mora County and worked with others in the county to draft oil and gas regulations, but after becoming affiliated with CELDF she threw her weight behind the CRO. In so doing she alienated many of the people who had been working with her on the regulations. According to some of those folks, she also made it more difficult for public participation in county commission meetings in both Mora and San Miguel counties because of her group’s relentless demands for an outright ban instead of regulations. (The San Miguel County Commission just extended its moratorium on oil and gas development while it finalizes its regulatory ordinance.)
The county was sued over the CRO by several private landowners and the Independent Petroleum Association of New Mexico as well as SWEPI LP, a subsidiary of Royal Dutch Shell. The incumbent commissioner Alfonso Griego voted for the ordinance last year. Commissioner-elect George Trujillo, who will take office in January, is on record supporting a regulatory ordinance rather than a ban, and Paula Garcia, the commissioner who voted against the CRO, also because she support the regulatory route, is heavily favored to win reelection against her Republican challenger.
If the newly constituted commission wants the lawsuits to go away there are several avenues it could pursue: 1) repeal the ordinance, which would also require a two-thirds majority vote of county residents; or 2) settle the lawsuits. What that might entail is only speculative, but in the long run might save the county some big bucks. While both the CELDF and the New Mexico Environmental Law Center are providing pro bono legal counsel on the initial lawsuit by the landowners and the Petroleum Association (see La Jicarita for a more detailed explanation of this representation), the Association is seeking payment of its legal fees from the county; Shell is seeking damages as well (Santa Fe attorney Jeff Haas is representing the county in this lawsuit).
In a recent editorial in the Albuquerque Journal attorney Lora Lucero minces no words when she writes that the county was “hoodwinked” by the CELDF to serve as a “guinea pig” in its legal experiments to fight fracking through outright bans that proclaim local self-governance can trump state and federal law. She compares it to the Santa Fe Ring’s machinations in the late 19th century against the land grants. In my commentary last year in La Jicarita I wrote that CELDF and its director Thomas Linzey see the firm’s mission 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.” But the folks whose lives will be most affected by this approach, the citizens of Mora County, had already been organizing to develop other strategies—strengthened regulations, zoning, land use planning, and site specific bans—that can protect water, agricultural, and cultural resources. The adoption of the CRO was precipitous, without a thorough analysis of the legal, financial, and political ramifications.
Lucero, who assisted Mora County in drafting its first comprehensive land use plan and development regulations back in the mid-1990s, also points out that asserting local self-governance can have some unintended consequences. Cities and counties that enact local self-governance could choose to opt out of other kinds of state or federal regulations and laws that provide necessary protection, or even enact laws that are discriminatory. The Sagebrush Rebellion and Wise Use movements come to mind, as well as other conservative efforts to limit environmental protections. In retaliation, State Senator Carlos Cisneros’ bill introduced into the legislature in 2013, which would have precluded county and municipal governments from regulating any aspect of the oil and gas industry, could be resurrected. Or the legislators who wrote a letter to Governor Martinez requesting she deny capital outlay funding to those counties and municipalities “that have voluntarily restricted the extractive industries” could garner even more signatures.
The CELDF and its community organizers in New Mexico promoted the Community Water Rights and Self Government Ordinance as the most radical and effective way to fight back against the Citizens United Supreme Court decision that gives corporations “personhood.” Unfortunately, it’s going to take more than the ordinance language “Corporations in violation of the prohibitions enacted by this ordinance, or seeking to engage in activities prohibited by this ordinance, shall not have the rights of ‘persons’ afforded by the United States and New Mexico Constitutions . . . ” to overturn that decision. (Democrats are shooting for a million signatures on a petition for a constitutional amendment to end it). The big industry guns will be out on this one (the Mountain States Legal Foundation, a conservative/libertarian legal advocacy law firm, represents the plaintiffs) because it’s the first challenge of an ordinance on constitutional grounds.
Norteños have long struggled for local input in the management of federal lands that once belonged to their ancestors, have fought for access to their acequias that lie within these public lands, and maintain a proprietary feeling for the land and water resources threatened by oil and gas development. Adopting an ordinance drafted by a law firm in Pennsylvania that lacks knowledge of and familiarity with the history, politics, and people of these on-the-ground movements is a recipe for failure. The voters in Mora County seem to be asking for a different mix.