In a little “frontier” community in northern New Mexico, a property rights battle is playing out with huge national implications and almost no one knows it is taking place. The outcome of two lawsuits that are pending against Mora County and its Community Water Rights and Local Self-Government Ordinance have the potential to impact an individual’s ability to use and profit from his or her own land—not just in New Mexico, but from coast-to-coast.
One year ago, on April 29, 2013, in a 2-1 vote, Mora County Commissioners made headlines by making the little county the first in the country to ban oil-and-gas exploration and production outright. Several communities have passed moratoriums or bans on hydraulic fracturing. Others, such as nearby Santa Fe County, have enacted rules and regulations that are so restrictive on drilling practices that they essentially do ban oil-and-gas drilling. But none have gone so far as to totally outlaw all development of hydrocarbons.
Mora County is proud to be taking a stand and believes that it has done an important thing. The commissioners think they have the rights locally. They don’t care what the federal or state constitutions say. They’ve passed this ordinance anyway. It’s one thing to say you can’t drill in this county. It’s something else again to say, “You know those constitutional rights you thought you had? Well, they don't apply in this county.”
Marino Rivera’s family has been in Mora County for generations. He supports the drilling ban, but, according to the Santa Fe New Mexican (SFNM), he knew the county would get sued. “The ban is unconstitutional. I think we all knew that going in.” He felt that it was worth the fight just to “make a statement.”
County Commissioner John Olivas, Chairman of the Board of Commissioners—who is on staff at the New Mexico Wilderness Alliance as a “traditional community organizer” and is also listed as the “northern director,” believes “the ordinance is defensible” and claims the little county is “ready for the fight.”
“Why is it wrong for citizens of Mora Country to say no to corporations?” Olivas asks.
Olivas characterizes himself as a part of a great crusade. He said: “we see these lawsuits as merely a beginning—of a waking up that must occur across our communities and the country to understand that we are caught within a system that virtually guarantees our destruction.” Olivas sees the effort as part of a movement that is bigger than an oil-and-gas ban in an area that doesn’t have any current drilling activity. He wants to “not only call out corporate decision makers for what they do—but begin to dismantle what they’ve spent so many years building.”
Olivas concludes his statement with a call to join the resistance movement, citing 150 communities that “have now begun to walk the path the people of Mora are walking.” He told New Mexico Watchdog: “I think it can lead to a domino effect.”
The Community Water Rights and Local Self-Government Ordinance
Mora County’s ordinance was a triumph for the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF)—which calls itself a “public-interest law firm.” About its work, the website states: “CELDF has assisted more than 150 communities across the country to establish Community Rights ordinances that today are protecting communities from a range of harmful practices, from shale gas drilling and fracking to the land application of sewage sludge.”
Funding for CELDF has come from such sources as the Heinz Endowments of Pittsburgh, chaired by Secretary of State John Kerry’s wife, Teresa Heinz ($162,000 from 2000-2002); the Norman Foundation of New York City ($180,000 from 2003-11); the Jessie Smith Noyes Foundation of New York City ($165,000 from 2001-11); and the Park Foundation of Ithaca, New York ($135,000 from 2008-11). It has also received support from RSF [Rudolf Steiner Foundation] Social Finance, a leader in what the magazine Inc. calls “do-gooder finance.”
In a press release about Mora County’s vote, CELDF Executive Director Thomas Linzey, Esq., claims: “Mora is joining a growing people’s movement for community and nature’s rights.”
The Mora ordinance states: “It shall be unlawful for any corporation to engage in the extraction of oil, natural gas, or other hydrocarbons within Mora County.” In June 2013, the commission voted to expand the ban to individuals as well. Additionally, under the ordinance, any permits or licenses issued by either the federal or state government that would allow activities that would compromise the county’s rights would be considered invalid.
Commissioner Paula Garcia, was the one “no” vote a year ago. Like her two colleagues, she opposes oil-and-gas drilling in Mora County, but she voted against the ordinance because, as she told the E&E (Environment and Energy) reporter: “the ordinance is so ambitious and experimental that it leaves the county vulnerable to a legal challenge by industry and then the county will have to go back to square one if it loses in court.” Garcia told the Albuquerque Journal: “It’s very experimental in that it has a lot of provisions in there that haven’t been tested. Most of the attorneys I’ve talked to said this is not likely to hold up in court.”
The ordinance tests U.S. Supreme Court decisions dating back to the 1800s that recognize corporations as having many of the same rights as citizens and challenges state and federal powers. IPANM President Richard Gilliland, in a press release, said: “What the Mora County Commission has done with the ordinance is an insult to the U.S. Constitution and every free citizen.”
The plaintiffs in one lawsuit are being represented by the Mountain States Legal Foundation—which, on March 10, won a landslide (8-1), property rights case before the Supreme Court: Marvin M. Brandt Revocable Trust v. United States.
William Perry Pendley, President and Chief Operating officer at the Mountain States Legal Foundation, believes this is an important fight. He says:
The lawlessness we have seen emanating from Washington, DC, has spread like a wildfire across the country. When elected politicians, senior administration officials, and career bureaucrats proudly proclaim that the Constitution is irrelevant and the law is whatever they say it is, it is little wonder that officials across the country follow their bad example. From coast-to-coast, isolated units of local government have declared that, regardless of what the federal and state constitutions or federal and state laws provide, they will bar their residents from using their property, creating jobs, and generating revenue and if the locals do not like it, then they can sue. I am proud that landowners in Mora County and the Independent Petroleum Association of New Mexico have the courage to demand adherence to constitutional liberties and the rule of law and have asked Mountain States Legal Foundation to represent them in that important battle.
Originally emboldened by talk that little Mora County was going to lead the nation in a “community rights” movement, in the face of lawsuits, many locals feel that they’ve been used. Meetings that used to attract more than 100, now have the same 30 people over and over.
One resident said: “People want to support a cause until they realize it is expensive.” Another: “Outsiders are trying to bring California to Mora.” Still another: “The county is out of control. It is broke.”
The SFNM reports: Many Mora County residents “believe the ban was an ill-advised move that will have high costs for an already cash-strapped county government and it will gain it nothing except attention. Others say the ordinance is an example of an outside Anglo group using a poor, minority county for its own ends.”
Defending the ordinance, Olivas told the Los Angeles Times (LAT) that the “remarkably untouched” environment “provides a sustainable living for most people.” He wants the oil-and-gas folks to “leave us alone. Let us enjoy what we have.”
Just what does Mora County have?
Olivas told the LAT: “We are one of the poorest counties in the nation, yes, we are money-poor, we are not asset-poor. We’ve got land, we’ve got agriculture, we’ve got our heritage and we’ve got our culture.” In the same LAT piece, 63-year-old Roger Alcon said: “We’ve lived off the land for five generations. …We have what we need. We’ve been very happy, living in peace.” Alcon’s comments close out the article: “We have what we need. To me, the fresh air and the land, and water. It’s better than money.”
Not everyone agrees.
The New Mexico Department of Workforce Solutions reported that Mora County had the second-highest unemployment rate in the state in March, at 14.4%; only Luna County was higher at 20.5%. None of the rest of the state’s 33 counties had unemployment rates in double digits. The SFNM adds: “Jobs are hard to come by. The primary employment is local government, the schools, the Mora Valley Health Services and the rural electric cooperative. The county budget is under $1 million.”
Many local residents were interviewed for background on this story. They addressed the desire for the jobs the resource development could bring. Others expressed frustration over the use of fear, not facts, in making the ban decision. One said: “They’re taking corporations rights now, next they’ll come and take mine.”
Even Garcia, who didn’t vote for the ban, but supports the premise, says she is not comfortable with CELDF using the county as its “soapbox.” She told the SFNM: “The reason I didn’t support the ordinance in April is that I wasn’t sure the majority of people knew the county was going to be used as a test case—not on an oil and gas fracking ban, but on the question of corporate personhood. I’m not in favor of fracking, but the language of the ordinance gave me pause.”
CELDF’s Linzey calls the situation: “The fight that people have been too chicken to fight over the past 10 years, which is essentially deciding who makes the decisions about the future of the places where people live.” An E&E report on Mora County declares: “Ultimately CELDF is hoping that Mora’s ordinance, one of 34 other local oil and gas ordinances it helped put on the books, will be challenged in court. It wants to test its legal argument that community rights should trump corporate rights.”
Linzey and his on-the-ground operative Kathleen Dudley (who is working to get a similar ordinance passed in other New Mexico towns and communities), have convinced the commissioners and some of the people of Mora County that that they are taking the moral high ground. When, in fact, they are the only community foolish enough to make themselves susceptible to being the guinea pigs for Linzey’s radical ideas.
In the New Mexico state legislature, bills have been introduced that would cut the capital allocations that come from oil-and-gas development to counties that ban extraction. In the case of Mora County, it receives approximately $4.5 million annually for its schools, $1.4 of that comes directly from the oil-and-gas industry. In 2013, Mora County received $2,145,310 for capital outlay projects. $2,038,000 of that was contributed by the oil-and-gas industry.
Mark Van Dyke, Chief of Staff, for Lieutenant Governor John Sanchez, reports that there is not much chance such a bill will ever pass, but was more optimistic about a different bill that would give the communities that are producing 31 percent of the state’s budget more funding to cover, for example, the additional wear and tear on their roads—after all, they are helping the state, while incurring damage done to roads, bridges, and lands.
Mora County doesn’t have any drilling activity but it is important as a part of the national battle.
La Jicarita—which calls itself “an online magazine of environmental politics in New Mexico”—states: “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.’”
In November seven fracking bans were on ballots—three in Ohio and four in Colorado. Several were in locales with no oil-and-gas potential development. As Pendley indicated, all of these fracking and drilling bans and/or moratoriums are part of an attempted national movement. The “symbolic” votes in communities with no oil-and-gas development are part of a strategy to target left-leaning constituencies where ordinances can be passed and momentum can be built.
On February 28, 2014, the Los Angeles City Council passed (10-0) a largely symbolic ban on hydraulic fracturing within city limits. Officials from the South Coast Air Quality Management District, the agency that oversees oil drilling in Southern California, said there have been no recent reports of fracking within Los Angeles’ city limits. There are 1800 oil and gas wells in the city of Los Angeles, only about 10 percent are active. The Los Angeles Chamber of Commerce is concerned about the possibility of people losing their jobs in the oil industry due to the decision.
CELDF affiliated groups, have popped up in San Luis Obispo and Santa Barbara, CA. They are preparing their own community rights ballot measures aimed at outlawing hydraulic fracturing. The CELDF website brags of involvement in these efforts. The Global Exchange—which calls itself “an international human rights organization dedicated to promoting social, economic and environmental justice around the world”—has the following on its website: “in Santa Barbara, following a Democracy School and a crowded public event, residents have decided to work with Global Exchange to explore what a rights-based ordinance could mean for their community.” The CELDF Democracy School is what launched the battle in Mora County.
The left, understanding the potential national implications, is paying attention to what happens in Mora County. A piece posted on ThinkProgress.com’s ClimateProgress site, states: “the amount of resources now unavailable to the oil and gas industry does not matter as much as the precedent the ordinance sets for other counties, cities, and even states that want to put an end to fossil fuel extraction. … If the IPA’s lawsuit against Mora succeeds, there will be a strong basis for future challenges to any other similar law or ordinance. However, if Mora’s ordinance holds up in court, it will become that much harder for the oil and gas industry to challenge future bans on fossil fuel extraction that may crop up in other places.”
The Mora County story, isn’t just about Mora County and it isn’t just about oil-and-gas drilling—or even about fracking. It reflects a battle being played out across America.
Karin Foster, executive director for the Independent Petroleum Association of New Mexico (IPANM), who was working with the group to file the first of the two lawsuits, says: “It is about business and our American way of life. It is time for industry, business and the general public to fight back to expose the hypocrisy of the people who drive their cars, turn on their lights, take hot showers, wear their Patagonia jackets, and drink their Starbucks coffee at town hall meetings in Mora County.”
Author’s note: Text is adapted from a full report published in the May 2014 edition of Green Watch.
The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). Together they work to educate the public and influence policy makers regarding energy, its role in freedom, and the American way of life. Combining energy, news, politics, and, the environment through public events, speaking engagements, and media, the organizations’ combined efforts serve as America’s voice for energy.