By KAY MATTHEWS
Two weeks ago the Mora County Commission looked like it was headed towards a repeal of the Mora County Community Water Rights and Local Self-Government Ordinance that bans oil and gas development in this small, northern New Mexico county. On Thursday, October 2, the Commission repealed Section 10 of the Community Rights Ordinance that requires both a unanimous vote of the Commission and a two-thirds vote of the Mora County electorate to repeal the Ordinance. Commissioners Paula Garcia and Alfonso Griego voted to require the votes of only two commissioners and no referenda, while lame duck commissioner John Olivas cast the dissenting vote. Olivas was the driving force behind the enactment of the ordinance in 2013 and was defeated in his re-election bid in this year’s primary.
The move towards a repeal was initiated by Commissioner Griego, although he, along with Olivas, voted in favor of the 2013 Community Rights Ordinance. He put forward both the repeal of Section 10 on October 2 and the advertisement to hear a repeal of the Ordinance scheduled two weeks later, as stipulated by law, expressing concern over the financial hardship of two lawsuits filed against the county.
But after a lengthy public hearing on Tuesday, October 14, Griego surprised everyone by voting against the repeal of the Ordinance. La Jicarita spoke with Paula Garcia shortly after the meeting. She said Griego seemed conflicted about his position in reaction to public comments, and after Commission chairman Olivas voted against the repeal, and Garcia voted in favor, Griego uttered a hesitant “no” and quickly left the chamber.
According to Garcia, the majority of people present at the hearing, many of whom were from outside the county, testified in favor of maintaining the Ordinance; their impassioned testimony obviously influenced Griego’s vote.
Since the passage of the Ordinance there has been considerable controversy in the Mora community regarding both its precipitous promulgation by a nationally based environmental group and its legal vulnerability as evidenced by the two lawsuits filed by oil and gas industry interests and private landholders.
The Independent Petroleum Association (IPA) 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 on November 11, 2013. 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.
A second lawsuit, filed by SWEPI LP, a subsidiary of Royal Dutch Shell, was filed on January 10, 2014 and 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).
As La Jicarita reported previously, SWEPI has filed a motion for “Partial” [summary] judgment, hoping to avoid a lengthy lawsuit, and the hearing that was set for October 16, which contributed to the Commission’s decision to take action on a repeal of the Ordinance, has been postponed until November. Settlement negotiations in the IPA lawsuit are confidential.
Mora County decided to adopt the Community Right Ordinance instead of a regulatory ordinance that had been drafted while an 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 commission chair Olivas 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.”
The activists who support regulatory oversight are proponents of a “belt and suspenders” approach —combining a ban-approach with a strict regulatory ordinance so that if one component is struck down by the legal system there is a backup in place to protect the county.
Apparently these folks were not as loud as the hard core group of folks who came to the meeting to support the Ordinance, many of whom are active in the movement across northern New Mexico to encourage communities to adopt similar “Bill of Rights” ordinances. But in January, when a new commission is in office, the repeal issue will undoubtedly be again raised. Commissioner-elect George Trujillo, who will take office in January, is on record supporting a regulatory ordinance rather than a ban, and Paula Garcia is heavily favored to win reelection against her Republican challenger.
La Jicarita asked Garcia about her consistent stand against the Ordinance: “The way I voted today was how I voted on the Ordinance. I’ve never been certain this was the best strategy to protect land and water in Mora County. I believe a more successful path is through strict regulations. I hope one day local bodies can stand against polluting industry and resource extraction, but for Mora County’s needs now, zoning would better serve our county.”