Mora County Election May Change Course of Fracking Ban

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.)

Mora County Commissioner John Olivas
Mora County Commissioner John Olivas. Santa Fe New Mexican photo

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).

County Commissioner Paula Garcia. Coalition of Counties photo
County Commissioner Paula Garcia. photo

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.





  1. Funny, Lora Lucero reminds me a lot of Kathleen Dudley. From what I have understood–having attended maybe 8 meetings of one stripe or another in Santa Fe, in Las Vegas, in Mora–about what happened in the evolution of the thinking of the people in Mora doesn’t jive with them being hoodwinked. Not at all.

    I heard from many people on numerous occasions that the turning point was when people from San Juan County came to Mora to warn their brothers and sisters about fracking. The people from San Juan County related horrifying tales about ecological trauma and environmental devastation. And they were telling verifiable truth about their own experience. The potency of what got transferred at that gathering was what fueled the drive toward (and I have to laugh here) the “CRO fantasy”–as if all movements for justice weren’t at one time considered quixotic.

    There’s a few other things you really have wrong, Kay. Certain emphases. I hope you’ll be able to make time to read Jeff Haas’ latest brief–it’s compelling in the extreme.

    Life is historic and contingent, and this case for the ban is not unwinnable. And the frackers having their way with Mora County is not yet a fait accompli, and may never be. So don’t worry so much about the money. Please!

    • Frances,

      Lora never inferred that the people of Mora have been hoodwinked about fracking, which is what you seem to imply by saying the turning point was when the folks from San Juan County came to share their horror stories about the effects of drilling on their communities and land. I was at the meeting in Mora when Tweeti Blanchett and others spoke. So were all the folks who had already been working to update the land use plan to incorporate more stringent regulations to protect Mora County. Lora’s use of the word hoodwinking references the CELDF representatives’ conviction that the only way to protect the county and take matters into their own hands was to pass the Community Water Rights and Self Government Ordinance banning oil and gas development in the county. Almost immediately the message of the movement was “If you don’t agree with this tactic you are either naïve or a sellout to the industry.” La Jicarita was dropped from the Drilling Mora County listserve when we wrote several articles about a new group that had formed to continue to research and push for stricter county regulations like those in place in Santa Fe County. Now we’re accused of being traitors to the cause of justice. I think I’ll let our 18-year record speak to that.

      • Thanks for responding, Kay. I hope you’ll permit me a rejoinder.

        Being as you were ejected from Kathleen Dudley’s listserv, you may have missed this (near incoherent) email announcing a new board (NM is represented by Kenny Ausubel, CEO & Co-Founder, Bioneers ):

        “The CELDF’s Advisory Board presents a broad and impressive list of people who are working to bring about fundamental change in a world gone a rye. Note the people and what this represents in the current movement in which we are all engaged, one way or another.”

        The “world gone a rye” email was sent late March, and she was off of CELDF’s payroll by April 15th. Though many credible people had long ago warned Linzey that she was a near imbecile, sadly another year of damage to the local CRO movement had to pass before they made her an offer she was bound to refuse (effectively removing her from her role as Organizer), and “resigned.”

        Since that happy day, I have been wondering whether the CRO movement in New Mexico could be recoverable. Probably not, if the concept itself is so thoroughly associated with her blundering. What a shame, because I’m sure you know that elsewhere attorney Helen Slottje has enabled 172 CROs to be enacted up and down the Marcellus Shale region in preparation for the inevitable end to the ant-fracking moratorium in New York State. Neither Dudley nor CELDF, whose brand has been so tarnished in NM as a result of that unfortunate hire, own the CRO concept.

        But back to Mora. It was my understanding that the message from the San Juan activists was: Don’t let the frackers into Mora County because once they’re in, you’re doomed. And that the message was fully received and it impelled the community to seek out CELDF’s assistance in enacting the ban, with full awareness of the risks, which were weighed against the certain destruction to the water and food supplies.

        The “hoodwinked” characterization is pejorative in my view, in that it effaces the people’s true agency in deciding their own fate, and infantalizes the community as Linzey’s dupes. Sorry, the people of Mora are not childishly manipulable, and he, though smart as hell, energetic and impassioned in his work, is not that powerful.

        Another thing that often gets effaced when the narrative is summarized is Henry Montoya’s rare and remarkable op-ed in the Santa Fe New Mexican, stating his regret in supporting the regulatory approach when he was county commissioner in Santa Fe County. It is one of the most lucid documents in the fight.

        On April 29, 2013, the people of Mora stood up against big Oil & Gas. Are they sitting back down? I tend to doubt it. Politically, a lot can still happen between now and the general election. Especially when the people learn how truly strong the case in defense of the ordinance actually is.

  2. From what I’ve been able to read about what is going on there is a lot of human energy available in Mora county regarding this issue. My thoughts would be to use that energy to: 1. organize a coalition to try to buy up mineral rights in the county. 2. Regulate oil & gas activity. 3. And promote solar, wind, and hydropower projects, drive electric vehicles, and become independent from oil & gas. Without a demand for gasoline there would be a supply glut and drilling would not make fiscal sense to the oil companies in part because of Mora county’s activism, while the county reaps benefits from alternative energy.

  3. There are fairly big projects to be tackled by Mora’s committees and the commissioners. But every single parciante in Mora could fairly easily be empowered to stop saying “yes” to oil & gas drilling every time they turn the key on their gasoline or diesel vehicles, by simply asking permission from their acequia association to use personal (pico) hydropower generation on their portion of the ditch, and/or set up solar panels, to re-charge their quiet electric vehicles (ATVs, trucks, tractors, cars) and run their household. Mora has a bundle of clean alternative energy that most probably has more ultimate energy potential than the hydrocarbon reserves.

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