By KAY MATTHEWS
A group of norteño activists presented a Community Rights Resolution to the San Miguel County Commission on Tuesday, November 13. In testimony before the commission, members of the group stressed that New Mexico, and especially northern New Mexico, is experiencing an ecological and social crisis and current county regulations are inadequate to protect the land and water from exploitation and development. Several speakers spoke to the issue of gentrification, others spoke about the slow shrinkage of irrigable land, but Michael Coca, the main spokesperson, got to the heart of the resolution couched in these concerns: an attempt to once again pass a Community Rights Ordinance banning oil and gas development, this time in San Miguel County.
Under “Section III. Proposed Resolution for a Comprehensive Water and Land-Use Plan,” the resolution states, “the county government must incorporate a community rights ordinance such as the City of Las Vegas ordinance, which states that the city has a right to ban businesses and entities that it deems a threat to clean air, water and land. This ordinance would address natural, cultural and environment rights.”
San Miguel County already has a strict ordinance that regulates the oil and gas industry that was passed in 2014. When Mora County adopted a Community Rights Ordinance (CRO) in 2013 that banned oil and gas development in the county it was sued by the oil and gas industry in two separate lawsuits. Not only did the ban result in burdensome lawsuits against the county, it bitterly divided the community and delayed work on an ordinance similar to the ones already adopted in Santa Fe County and San Miguel County that use zoning regulations to strictly regulate how and where the oil and gas industry can explore, drill, and hydraulically “frack” within the county. Once the CRO was rescinded Mora County persevered and recently passed an ordinance that is even stronger than the San Miguel and Santa Fe ordinances. All three ordinances actually make the process so burdensome to the industry that the upshot may be no oil and gas drilling at all. The City of Las Vegas may have passed a community rights ordinance but the mayor refused to sign it unless the unconstitutional elements were removed: the same elements that were judged unconstitutional in the Mora CRO. There are no oil and gas leases within the city limits.
Additionally, in response to Mora’s CRO ordinance, five bills were put forward in the state legislature that would have precluded county and municipal governments from regulating any aspect of the oil and gas industry or deny capital outlay funding to those counties and municipalities that voluntarily restrict the extractive industries.
Then Mora County Commissioner John Olivas was the local point person behind the CRO, who relied on the template supplied by the Community Environmental Legal Defense Fund (CELDF), the law firm based in Pennsylvania that persuaded the county to adopt the ordinance as a test case. Some went so far as to say that CELF used Mora County 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 (Lora Lucero, in an Albuquerque Journal op-ed). After the county was sued by the Independent Petroleum Association (IPA) of New Mexico in 2013 and SWEPI LP, a subsidiary of Royal Dutch Shell in 2014, Olivas lost his bid for re-election and in 2015 the court declared in the SWEPI complaint that the ordinance was unconstitutional. The judge stated that it violated the Supremacy Clause and the First Amendment rights of SWEPI. The county did not appeal the decision in exchange for SWEPI not demanding attorney’s fees. The county was able to settle the other lawsuit with IPA.
In an op-ed published in the Green Fire Times the authors of the resolution (Miguel Angel, Michael Coca, William Gonzales, Dr. Eric Romero, Kristin Yount, Arnold Valdez, Hilario E. Romero, Mitch Peters and Ingrid Bond) acknowledge their partnership with CELDF and a CRO’s legal ramifications in a speculative way:
“Ben Price, National Organizing Director of the Community Environmental Legal Defense Fund (CELDF), reviewed the model county resolution we have written and is providing legal assistance in drafting a Community Rights Ordinance for San Miguel County. At issue is the question whether a county faces more liability by enacting a Community Rights Ordinance that could result in potential suits filed by personal property owners and corporations; or does a county face the long-term permanent liability of county citizens suing the county for allowing the destruction of the clean air, water, land and bioregional watersheds?”
The list of other proposed resolutions are commendable: a land use plan that would “assure vital water resources, ecological and cultural values/practices are protected under the Public Welfare Doctrine;” acequia rights must be confirmed; alternative energy strategies must be developed, etc. It’s a platform that argues for the commons against the market driven economy and the state. I just published a book called ¡No Se Vende! Water as a Right of the Commons in which I also argue that communities can manage their land and water resources with sustainable economic development. Why are the proponents of this resolution then putting it at risk by assigning CELDF to write a Community Rights Ordinance that includes a ban on not only oil and gas development but according to the language in the resolution, “businesses and entities that it deems a threat to clean air, water and land”?
I asked Michael Coca this question in a phone conversation. He acknowledged that the San Miguel County Commission is opposed to a CRO in light of Mora County’s history (Commissioner Janice Varela, a former staff member of the New Mexico Acequia Association, asked why the activists haven’t worked with her on the agricultural policies she’s been developing) but said the group was “undecided” as to whether it would continue its partnership with CELDF. But he was adamant that the county land use plan is inadequate and needs to be rewritten to include regulations to include stricter land and water use regulations such as a public welfare doctrine that protects against water transfers. We discussed the Taos County Public Welfare Ordinance that set up a committee that makes recommendations to the county commission regarding transfers both within and from the county as to whether the county should protest the transfer as contrary to the public welfare. As I’ve documented in La Jicarita, this didn’t always guarantee the protection of water resources when county politics come into play.
He also stressed the need for adequate watershed restoration and mentioned the ongoing work of the non-profit Hermit’s Watershed Alliance in the Gallinas Watershed in both Mora and San Miguel counties. This watershed is one of the most stressed in northern New Mexico due to many factors, including the ongoing adjudication complicated by the Pueblo Water Rights Doctrine (a doctrine that claimed municipal water rights were superior to water rights of adjacent irrigators). The Gallinas Watershed acequias have lost thousands of acres of irrigable acres due to these longstanding litigations.
Michael also insisted that the acequias and land grants are community rights established in the Treaty of Guadalupe Hidalgo and are asking the county to recognize these rights in an ordinance. This is where they may also face legal obstacles proving where it’s established in the practice of Spanish law.
On the same day as the Community Rights Resolution was presented to the county commission, David Luis Leal Cortez had a showing of his film, “Drilling Mora County,” at the Indigo Theater in Las Vegas. The CRO activists Kathleen Dudley of NM Coalition for Community Rights and John Olivas and Jacobo Pacheco of the Mora Land Grant were there for a question and answer after the showing. The movie is a platform for the Community Rights Ordinance; the only person who appears to state the case for using land use and zoning laws to regulate the oil and gas industry is Paula Garcia, the Mora County Commissioner who voted against the CRO and who is also the executive director of the New Mexico Acequia Association and a member of the Mora Land Grant. Cortez uses a clip from an interview with Paula conducted by another journalist during the firestorm caused by promulgation of the CRO (see her La Jicarita article explaining her position).
As I reported previously in La Jicarita, the internecine contention caused by the promulgation of the CRO was intense and long lasting; CRO proponents directed a high level of abuse and rhetoric at Mora and San Miguel citizens who called to question its effectiveness as a legal tool in protecting resources. They were shouted down at hearings at county commission meetings. Proponents of the ban went so far as to call Paula and me “shills” for the oil and gas industry. Michael agreed to keep the level of discourse constructive and civil as their plans unfold and I continue to cover the issue.