An Update on the Mora County Community Rights Ordinance Banning Oil and Gas Development

By KAY MATTHEWS

A motion for “Partial” [summary] judgment is currently pending in one of the cases against Mora County’s Community Rights Ordinance, which bans oil and gas development in the county, so I thought it would be a good time to take another look at the two lawsuits challenging the ordinance. The first lawsuit was filed by several individuals and the Independent Petroleum Association of New Mexico (IPA) in November of 2013, and the second lawsuit by SWEPI LP, a subsidiary of Royal Dutch Shell, was filed in January of 2014.

The summary judgment motion was filed in May of this year by SWEPI, which currently holds several leases in Mora County, including one issued by the Commissioner of Public Lands for the state. A motion for judgment on the pleadings can be granted when “the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” The company also filed a motion to “stay all discovery proceedings” until the motion is decided. In other words, SWEPI is hoping for a judgment by the court that will preclude a long, drawn out trial.

The company’s argument refers to the claims made in the initial filing, 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).

The county is represented by two Santa Fe attorneys in this lawsuit, Nancy Long and Jeff Haas. Long was appointed to represent the county when its insurance kicked in (the New Mexico Association of Counties provides the insurance) because of the claim of damages that is included in the SWEPI lawsuit. Haas was initially hired pro bono by the Mora Land Grant, which has filed a motion to intervene in the lawsuit (still pending) and was subsequently hired by the county to represent it in the SWEPI lawsuit. He wrote the county’s response to the motion for summary judgment, which claims that the defendants (county) have raised factual issues that require discovery, i.e., proceeding with the lawsuit, and that SWEPI lacks standing:

“Defendants deny that Plaintiff is in possession of a valid lease authorizing it to engage inhydrocarbon extraction in Mora County. Defendants also deny that Plaintiff intends to engage in any activities related to the extraction of hydrocarbons from the properties Plaintiff allegedly holds by lease. Further, Defendants deny that Plaintiff has proven through undisputed facts that there is no reasonable and rational basis for the County to have enacted the Ordinance or that the Ordinance was not necessary and proper to protect the air, water, land, health, welfare, and safety of Mora County citizens.”

Haas is saying here that to meet the standards for a summary judgment the Plaintiff must at least allege that the company has property of value to demonstrate that it will suffer a loss. Therefore, unless the discovery process is allowed to go forward the court cannot confirm that the Plaintiff will “suffer, or imminently suffer injury,” i.e., not be able to develop their leases through the fracking process. The Defendant also argues that lack of standing obviates the argument by the Plaintiff that the ordinance is unconstitutional.

In the other outstanding lawsuit by the private landowners and the Independent Petroleum Association, the county is represented by Thomas Linzey of the Community Environmental Legal Defense Fund (CELDF), working with a New Mexico attorney Daniel Brannen and Eric Jantz of the New Mexico Environmental Law Center. CELDF is the non-profit law center based in Pennsylvania that essentially wrote the Community Rights Ordinance and helped convince the Mora County Commission, under the then chairmanship of John Olivas, to pass the ordinance. Olivas subsequently lost his bid for re-election, and his opponent, George Trujillo, who will take office in January, is on record favoring a regulatory ordinance instead of a ban.

The county has issued a formal statement regarding the status of this IPA lawsuit:

“The Mora Board of Commissioners continues to believe that the oil and gas ordinance is lawful and the lawsuits are defensible. At the same time, the Board has an obligation to consider all options in the County’s best interests. The Court in the IPA case recently asked the parties to attend a status conference, part of the purpose of which was to explore the possibility of settlement.  So, through counsel, the County has expressed a willingness to talk with the plaintiff about the possibility of settlement in the IPA case, while at the same time remaining ready to continue defending the lawsuit should a reasonable settlement be unattainable.”

I spoke with Paula Garcia, Mora County Commissioner (who is heavily favored to win re-election to the commission) and president of the Mora Land Grant, about what all this might mean in the long run for the county. The county is not formally working on a backup ordinance that would rely on zoning regulations to restrict oil and gas development—it’s attention has been focused on the lawsuits—but citizens continue to follow developments in San Miguel County, where an ordinance, similar to the one enacted by Santa Fe County, is being fine tuned and hopefully implemented by the end of the year. If the IPA lawsuit is settled Mora County could impose a moratorium on development while it formulated an ordinance.

Contention in the county between those who disagree on strategies to protect land and water from oil and gas development, particularly fracking, has lessened since the departure of Kathleen Dudley, the community organizer for CELDF, and the defeat of John Olivas, although Garcia pointed out that there were other political concerns that played a part in that defeat. While she originally voted against the enactment of the Community Rights Ordinance, believing that a zoning ordinance would be more defensible and that the land grant’s intervention in the lawsuit presents a conflict of interest, she recognizes that both Thomas Linzey and Jeff Haas are using the situation in Mora as a platform for revealing the injustices in the legal system. But if land use lawyers and others are correct, that this case is indefensible, then the County may be liable for significant costs.