World is watching Mora County battle against fracking
Source: The Santa Fe New Mexican, November 24, 2013
Posted on: http://envfpn.advisen.com
It is a script destined for a Hollywood movie: A rural, low-income, mostly Hispanic New Mexico county passes a community rights ordinance, bans oil and gas drilling, and is sued by rich, greedy oil and gas barons.
“We’re protecting our water,” say two Mora County commissioners who support the ordinance.
“It’s unconstitutional,” cry the Independent Petroleum Producers of New Mexico and a couple of private property owners who are suing over the ordinance. Their lawsuit was filed Nov. 15 in federal District Court.
People around the U.S. and the world who are deeply concerned about the influence of big corporations and the potential environmental damage from hydraulic fracturing methods — used to tap oil and gas supplies — cheer on Mora County.
But there’s more to this story — nuances and tensions that are hard to uncover unless you were born and raised in this hard-scrabble, beautiful and resilient Northern New Mexico county.
Most Mora County residents oppose oil and gas drilling. But some of them say there were better ways to prevent drilling, strategies that had a better chance of standing up in court. They believe the ban was an ill-advised move that will have high costs for an already cash-strapped county government and 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.
But there’s no backing down from the fight now.
A history of resistance
In 1880, Marino Rivera’s great-grandfather strapped on his pistols, mounted his horse and rode across his land near Rainsville in Mora County. A friend had told him “the company” was fencing, and if he didn’t go quickly, they would fence right though his property.
“How sad would it be if I didn’t protect the land now,” said Rivera, who supports the county’s community rights ordinance and the oil and gas drilling ban.
Mora County encompasses 1,933 square miles of mountain valleys, tree-lined hills and grass-covered plains. It is ranch and farm country blessed with clear mountain streams and abundant wildlife. The White Peak area in the northeastern part of the county is a popular elk-hunting spot.
The history of the area stretches back to the Jicarilla Apache, who lived there prior to the arrival of Spanish settlers, then French trappers and, finally, Anglo ranchers.
In 1835, the Mexican government granted a few dozen families 827,000 acres as the Mora Land Grant. Most of the land was held in common by the families, who shared the water and resources.
The valley was booming as travelers thronged the Santa Fe Trail. At one point, the Mora Valley was a major producer of wheat for the area. Mora County was founded in 1860.
But by the time Rivera’s great-grandfather stopped the fence, a good portion of the land grant had been taken away from the original grantees through legal shenanigans and outright swindles, according to Paula Garcia, a Mora County commissioner and president of the Mora Land Grant Association. Her family was among the original grantees. Some Hispanic families were able to retain land after a decades-long court battle, she said.
“It is still a raw memory, at least in oral history,” Garcia said. “It is not taught in history books. There is a sense that we fought to protect Mora, to keep our connection to the land. Some people in Mora actually revolted, as they did in other parts of New Mexico.”
“There is a strong history of resistance in the valley,” she added.
That history provided the backdrop for a Pennsylvania attorney to convince some Mora County residents and two county commissioners to approve an ordinance that bans oil and gas extraction. The measure tests a U.S. Supreme Court decision and challenges state and federal powers.
Oil and gas industry eyes Mora
The county’s estimated 2012 population was 4,700, according to the U.S. census. More than half speak Spanish at home, and more than 86 percent have at least a high school education. “We have 2.5 people per square mile. We qualify as frontier,” according to the U.S. Department of Agriculture, said County Commission Chairman John Olivas, a longtime outfitter whose family has lived in the county for generations. “We would have to double our population to be considered rural.”
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.
Oil and gas producers have had their eyes on Mora County since at least the 1950s. A whole slew of leases were signed in 1952 between mostly Hispanic landowners, the Continental Oil and Transportation Co. and F.H. Gower Co. Apparently, few of the leases were acted on.
For almost half a century, there was a lull, according to Mora County clerk filings. Then in 2009 and 2010, KHL Inc. and other companies negotiated dozens of oil and gas lease deals with Mora County property owners. To date, an estimated 100,000 acres have been leased, mostly in the eastern half of the county.
Of the 36 private-property oil and gas leases filed with the clerk in 2009 and 2010, 14 were with families who had Hispanic surnames. Their Mora County properties range from a few hundred acres to several thousand.
Oil and gas leases for more than 9,000 acres of state trust land in the area near White Peak were approved by former State Land Commissioner Patrick Lyons before the end of his term in 2010. Revenues from oil and gas leases on state trust lands are distributed to local schools and hospitals.
Oil and gas proponents argue that drilling would bring much-needed revenue into Mora County. Neighboring Colfax County collected at least half a million dollars last year in taxes on oil and gas operations.
But Rivera said the money wouldn’t matter if oil and gas extraction polluted Mora County’s precious water supplies.
Same goal, different approaches
Paula Garcia and John Olivas have a lot in common. Both were born and raised in Mora County, and their families have lived there for generations. Both have been active in advocating to protect land and water, not just in Mora County but around the state.
Both oppose oil and gas drilling in Mora County. But they differed on how to stop it.
They were both elected to the County Commission in 2010. They worked together to unravel a financial nightmare involving the county’s courthouse complex. An audit found more than a dozen problems with the way money from a 2004 bond election had been mishandled by previous county administrations. The complex is still a shell, and all the county offices are housed in dilapidated portables that are freezing in the winter and hot in the summer, Olivas said. The county still needs millions of dollars to complete the project.
Plus, the county has had to take over the ambulance service, which loses thousands of dollars a year trying to take care of people in the isolated county.
Now, there’s the lawsuit over the oil and gas ordinance.
“We’re trying to figure out how to fund our ambulance service. We’re trying to figure out how to finish the county complex,” said Garcia, who also is the executive director of the New Mexico Acequia Association that works with irrigators statewide. “This legal battle makes that work much more difficult.”
Garcia said the commissioners and others in the community were working on an oil and gas ordinance back in 2011, reviewing the regulations other communities had put in place. Mora County put a moratorium on oil and gas drilling to buy time. Kathleen Dudley of the organization Drilling Mora County had been working on the issue even before that and hired the New Mexico Environmental Law Center to advise the group on a strong ordinance. Her group also found money to have some of the county’s wells tested to start a base line for water quality in case oil and gas companies began drilling.
They had watched Santa Fe County approve one of the most restrictive zoning regulations in the nation at the time to discourage oil and gas drilling. That ordinance didn’t ban drilling, and it has yet to be challenged in court.
Then Dudley heard about a Pennsylvania attorney, Thomas Linzey, who co-founded the nonprofit Community Environmental Legal Defense Fund shortly after graduating from law school in 1995. He also co-founded Democracy Schools, which offers seminars about how local communities can assert themselves. When he came to Mora to speak, Dudley, Olivas and others thought he made a lot of sense.
Suddenly, the talk of preventing oil and gas drilling through a tightly written zoning regulation shifted to something entirely different, some observers say. And it got the county sued.
Challenging the status quo
Linzey and the Community Environmental Legal Defense Fund created a model ordinance, later tweaked by dozens of communities across the nation, including Mora. It’s being used to fight against factory farms and hydraulic fracturing. Essentially, the ordinances all say the same thing: People have an inalienable right to self-government, and that right can’t be superseded by corporations.
The ordinance challenges U.S. Supreme Court decisions dating to the 1800s that recognize corporations as having many of the same rights as citizens. It also recognizes rights for ecosystems and calls for seceding from any governments (federal, state, county) that attempt to pre-empt or change the ordinance.
It’s hard to repeal the ordinance. Instead of a simple majority vote of the County Commission, it requires a unanimous vote of the commission and approval by three-quarters of voters.
Garcia said when the community rights ordinance was presented to the commission April 29, it was with the understanding that it was an up-or-down vote. Olivas and Commissioner Alfonso Griego voted in favor of it, making Mora the first county in the nation to approve the ordinance.
Garcia was the sole vote against it. She said, “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.”
Her vote was misinterpreted as being in favor of fracking, she said, which has been difficult, given that she has long been “deeply connected to the land and water.”
Garcia thinks there were better strategies available that could have prevented drilling but reduced the chances of the county getting sued.
Olivas, however, points out that a strict zoning regulation, like Santa Fe’s, requires oil and gas companies to jump through a lot of legal hoops — but in the end, they can drill.
Unlike Rivera, Olivas believes the county can win this fight. “Why is it wrong for citizens of Mora County to say no to corporations?” he asked. “I think the ordinance is defensible.”
On Nov. 15, the county was sued in federal District Court by the trade group Independent Petroleum Producers of New Mexico, the Mountain States Legal Foundation, landowner Mary L. Vermillion, the JAY Land Ltd. Co., and Yates Ranch Property. The lawsuit claims the Mora County ordinance violates their rights under the First, Fifth and 14th Amendments to the U.S. Constitution.
“My feeling is, regardless of how you stand on the oil and gas issue, the idea that the County Commission has the right to nullify constitutional rights is insane. And that’s what this ordinance proposes to do,” said Vermillion, an attorney who owns less than an acre of land in Mora County’s Ojo Feliz.
Community activists split
Dudley and others are working to get other New Mexico towns and counties to pass a similar community rights ordinance.
But some longtime community activists are upset with the group’s tactics and think their efforts are misguided.
“Our communities are tired of being used, whether it is by the liberals or the corporations,” said Sofia Martinez, president of the 13-year-old Concerned Citizens of Wagon Mound and Mora County. “What is the difference?”
Martinez and her group fought and won two court cases to keep the Northeastern New Mexico Regional Landfill from obtaining a permit to put waste on private land. They’ve protected the community’s water rights all the way to the New Mexico Supreme Court. “I personally attend most of the Mora County Commission meetings, and many of us are appalled at the nontransparency, unethical practices [that] have become common practice” since January, she wrote in an email.
“If you know all the other problems in the poorest county in the state, why would you do something that will get you sued?” she asked in an interview.
While she credits Dudley with having excellent organizing skills, Martinez thinks the group now is getting used by the Community Environmental Legal Defense Fund, to Mora County’s detriment. “CELDF is clear they want this to be challenged all the way to the high court. That is fine. Just don’t use us to do it,” Martinez said.
Rivera said those supporting the ordinance knew Mora County would get sued, but he felt it was worth the fight. “The ban is unconstitutional. I think we all knew that going in. CELDF was very upfront about that,” he said. “But we all felt that we were going to get the raw end of the stick anyway. We’re going to get screwed anyway, so let’s at least make a statement.”
Battle lines drawn
Garcia said despite her misgivings about the ordinance, she’ll stand with the county now in the fight.
“At this point, I will be supportive of Mora County’s legal battles that are looming,” Garcia wrote. “The ordinance is going to gain a lot of attention for Mora, but, ultimately, the courts will decide if it can be enforced.”
On Tuesday, Garcia voted with the other two Mora County commissioners to retain three law firms to respond to the lawsuit. “I want the best possible outcome for the county,” Garcia said.
For Mora County, for better or worse, the world is watching and the fight is on.