By KAY MATTHEWS
State Representative Andrea Romero’s latest blunder was all over newslandia this past week. On Thursday, January 31, she released House Bill 437, the “Right to be Forgotten Act,” which would require that “A publisher shall remove inaccurate, irrelevant, inadequate or excessive content regarding an individual, and any links or indexes to that content, within thirty days of the date of receipt of a request to do so from that individual,” or be imposed with a fine of $250 for each day after 30 days from when an individual asked for content to be removed from the web. After an immediate outcry of foul from media sources that called it everything from unconstitutional, which it is, to Trumpian, censorship, and retaliation, she tabled it the next morning before it could ever reach the house floor, releasing this statement: “The intent of the bill was to protect victims of revenge porn, cyber bullying, and others. I understand that the language was far more sweeping than intended, and I would never want to — in any way — undermine the First Amendment.”
As readers of La Jicarita know, the accusation that the bill is retaliation comes from the baggage Romero brings with her to her very public job as state representative. She attempted to retaliate against two whistleblowers who helped expose the $51,000 of misspending during her tenure as executive director of the Regional Coalition of LANL Communities (RCLC) that is still being investigated by the Attorney General’s Office. She requested that the RCLC hire an attorney to “consider lodging a formal request to Los Alamos National Laboratory to investigate” whether the two whistleblowers, Heather Nordquist and Beverly Duran-Cash, who are employees of LANL and members of a non-profit citizen group Northern New Mexico Protects, had filed the proper paper work with the Lab to make clear their work with an outside agency was not a conflict of interest and assured “ethics compliance.” Apparently she wanted that baggage gone from the publications that covered not only that controversy but also her ties to the agency that now manages the RCLC (she served on the advisory board) and her failed business that received monies from various development corporations. If her bill were to be passed publications like La Jicarita could be sued for writing about her. People who maintain blogs about the RCLC and other issues in which she’s been involved and people who post on those blogs could be sued. There is no language in the bill that refers to cyber bullying or porn (I’ve included a copy of the bill below).
But I want to write about how Romero’s bad judgment is more than a headline news story, it’s the culmination of some really bad politics whose repercussions continue today. Romero, a neophyte candidate, challenged incumbent Carl Trujillo in the Democratic primary in District 46, which encompasses an urban/rural area stretching from Santa Fe to the Pojoaque Valley and Chimayó. She came directly out of the RCLC debacle and into the contested terrain of the Aamodt Adjudication Settlement that Trujillo had been heavily invested in as a representative of constituents who continue to deal with its fallout.
Romero was somehow given the benefit of the doubt and backed by the Democratic establishment and groups like the Santa Fe-based Retake our Democracy, which underestimated the strong support of Trujillo’s constituency because of the Aamodt controversy and his work on other issues like the road easement controversy between Santa Fe County and San Ildefonso Pueblo. Unfortunately, the race soon devolved into an artificial divide between urban and rural, Hispano and Native American, and progressive and centrist, fueled by outside monies and longstanding prejudices and ignorance.
Then Trujillo’s campaign was derailed when he was accused of sexual harassment by a lobbyist for an animal rights group, which he vehemently denied. He lost the race to Romero but the charges were later dismissed by a legislative ethics subcommittee when the accuser refused to testify.
Many of Trujillo’s supporters were very unhappy with Romero’s victory and Heather Nordquist, the whistleblower in the RCLC debacle, decided to run against her as a write-in candidate. Nordquist ran a strong campaign and garnered a respectable number of votes, but a write-in candidate’s chances are almost always nil.
Regional Coalition of LANL Communities (RCLC)
In an astonishing simulacrum of Romero’s “Right to be Forgotten” attempt, at the January 30 RCLC retreat in Española to edit its Joint Powers Agreement (JPA), the group discussed whether changing its name might help regain the credibility it lost in its years with Romero at its helm. Several members of the public spoke up about this proposal. Suzanne Schwarz of Taos suggested that the RCLC Board should define the LANL missions it supports in order to better understand how it represents its communities prior to considering a name change. The RCLC Board represents the communities of Santa Fe city and county, Rio Arriba County, Española, Taos city and county, Jemez Pueblo, and Ohkay Owingeh Pueblo. As Eric Velasquez, new executive director pointed out, although the LANL acronym appears in the name of the coalition, the RCLC is not an entity of Los Alamos National Laboratory. James Mountain, a former governor of San Ildefonso Pueblo, who also attended the meeting, said that the RCLC needs to face the past and keep its original name.
The question of the LANL mission also came up under discussion of the Joint Powers Agreement, which has been a longstanding area of controversy among critics of the organization who accuse the group of failing to restrict its lobbying efforts to clean-up of legacy waste at LANL. There have been several meetings of the coalition where citizens have asked that section “2.A (ii) advocacy of long-term stable funding for LANL missions” be amended or removed from the JPA to reflect this restriction. At the retreat Schwartz asked that the “missions” be defined in the JPA. Vasquez responded that the coalition helped Los Alamos County secure consistent cleanup funds from Congress through a “Life Cycle Cost Estimate” for the Lab, but those funds are tied to the revised 2016 Consent Order that is less restrictive than the original 2005 New Mexico Environment Department Order governing clean-up at LANL, and claims that certain clean-up is either too expensive or impractical (Nuclear Watch New Mexico is suing the Department of Energy and Los Alamos National Security over their failure to enforce the Order).
The rest of the meeting focused on defining what and who a fiscal agent for the organization might be to avoid the fiscal mess that led to their two audits and the pending investigation by the Attorney General.
Trujillo’s defeat left his constituents dealing with the bureaucratic nightmare he had been helping them wade through as they entered the process of deciding whether to hook up to the Pojoaque Basin Regional Water Delivery System (RWS) or purchase the newly required water meters for their wells. From the very beginning many valley residents had lobbied against the water delivery system that would bring water piped from the Rio Grande to the non-pueblo water user homes. Initially, the settlement had required that hooking up wells to the system would be mandatory, but after a huge outcry of opposition, that was renegotiated to a voluntary hook-up. Many of the valley residents had lobbied for a septic system, not a water delivery system, and viewed the RWS and the new metering requirements by Office of the State Engineer as onerous and unnecessary.
The cost estimates of the RWS, which is supposed to begin operation this year, has risen significantly above its original estimates. The current estimate, in 2018 dollars, is $421.4 million, with a $213.4 million funding gap: $160.2 million in federal funding and $53.2 million non-federal funding. The state of New Mexico has no obligation to provide any additional amounts above what is stipulated in the Cost Sharing Agreement of the Settlement, which is $57 million. Santa Fe County’s Cost Share is $13.4 million. The county also had to pay for the acquisition of the 1,752 acre feet of Top of the World water rights: 1,141 afy were sold to the Department of the Interior and will go to the pueblos; 611 afy are earmarked for the non-pueblo water delivery system. They are currently being leased back to Top of the World to Ed and Trudy Healy, who purchased the dry land farm there. The federal government pays only for the portion of the water delivery system to the pueblos while the non-federal funding pays for the non-pueblo system.
Between 2012 and 2018 the federal government has appropriated $128.3 million direct funding to the Aamodt Settlement: the 2019 budget recommends $8.3 million. As for the State, in 2014 it made a contribution of $15 million and $9 million in 2018. The estimated future value of the State’s obligation is $52.5 million (construction, connection, and mitigation costs).
The Settlement set a deadline for construction of the RWS by the Bureau of Reclamation (BOR) of 2024. In an August 30, 2018 letter the state’s congressional delegation responded to the BOR’s acknowledgment that cost overruns may delay “substantial” completion of the RWS until 2029 and that the agency has refused to begin construction until Congress enacts a $200 million authorization increase and provides the construction deadline extension. The letter asks for “documentation explaining these cost overrun estimates and justifying any potential increase in the authorization ceiling.” It goes on to chastise the BOR for putting the entire settlement agreement in jeopardy and perhaps setting a “terrible precedent” for a number of other settlement agreements.”
I called the Albuquerque BOR to ask about the current status of the RWS and was referred to the Department of the Interior, which failed to call me back. I also contacted Taos County Commissioner Candyce O’Donnell to ask about the status of Taos County’s appeal of the Top of the World water rights transfer: it remains in District Court, as yet undecided. As I’ve previously reported, the parties and the presiding judge in the Aamodt Settlement ignored this fact, that there is an extant legal action against the movement of the water rights necessary to underwrite the water delivery system that our congressional delegation is now saying is in danger of collapsing because of BOR cost overruns and delays. May I say touché!
HOUSE BILL 437
54TH LEGISLATURE –STATE OF NEWMEXICO- FIRST SESSION,
RELATING TO TRADE PRACTICES; ENACTING THE RIGHT TO BE FORGOTTEN ACT; REQUIRING CERTAIN PERSONS THAT PROVIDE PUBLIC INFORMATION TO REMOVE DAMAGING INFORMATION UPON REQUEST; PROVIDING A CAUSE OF ACTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.–This act may be cited as the “Right to Be Forgotten Act”.
SECTION 2. [NEW MATERIAL] DEFINITIONS.–As used in the Right to Be Forgotten Act:
- “inaccurate, irrelevant, inadequate or excessive” means content relating to an individual that, after a significant lapse in time from its first publication, is no longer material to current public debate or discourse when considered in light of the demonstrable harm that the information, article or other content is causing to the individual’s professional, financial or personal reputation or other interest; but does not include content related to criminal convictions, legal matters relating to violence in which the individual played a substantial role or content that is of significant current public interest; and
- “publisher” means a search engine, indexer, publisher or other person that makes information about an individual available, on or through the internet or other widely used computer-based network, program or service.
SECTION 3. [NEW MATERIAL] REMOVAL OF INFORMATION.—A publisher shall remove inaccurate, irrelevant, inadequate or excessive content regarding an individual, and any links or indexes to that content, within thirty days of the date of receipt of a request to do so from that individual. The publisher shall not replace or cooperate with another person to replace the removed content with any disclaimer, take down notice, hyperlink or other replacement notice, information or content that refers the reader to another source that provides the removed information.
SECTION 4. [NEW MATERIAL] PRIVATE REMEDIES.—
- An individual may bring an action against a publisher that violates Section 3 of the Right to Be Forgotten Act and may recover the greater of any actual monetary loss or statutory damages in the amount of two hundred fifty dollars ($250) for each day or portion of a day in excess of thirty days after the publisher received the request for removal that the publisher:
(1) fails to remove inaccurate, irrelevant, inadequate or excessive content; or
(2) fails to remove any disclaimer, take down notice, hyperlink or other replacement notice, information or content that refers the reader to another source that provides the removed information.
- The court shall award attorney fees and costs to the party complaining of a violation of the Right to Be Forgotten Act if the party prevails. The court shall award attorney fees and costs to the party charged with violation of the Right to Be Forgotten Act if it finds that the party complaining of a violation brought an action that was groundless.
- The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
SECTION 5. EFFECTIVE DATE.–The effective date of the provisions of this act is July 1, 2019.- 3 -.213033.1