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Group Seeks To Prohibit Fracking

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A grassroots group is working on two fronts to try to get both the city of Las Vegas and San Miguel County to place a ban on gas, oil and geothermal drilling.

The Community for Clean Water Air and Earth is still pushing a “community rights ordinance” that would keep hydraulic fracturing – better known as fracking – out of Las Vegas but which the mayor has blocked.

City officials say it’s unconstitutional. The ordinance says corporations violating the ban on drilling within the city limits or the Las Vegas watershed don’t have “the rights of persons” afforded under the U.S. Constitution and that state or federal laws can’t be used to pre-empt the local measure.

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The Las Vegas City Council passed the ordinance by a 3-1 vote in April. Even its sponsor said fracking in town was unlikely but that the measure serves as a community statement against drilling and in solidarity with opponents of potential oil and gas operations in nearby Mora County.

Mayor Alfonso Ortiz has refused to sign it.

“The way it reads, it will supersede everything – our city charter, state and federal laws,” said Ortiz, who prefaced his remarks by saying that he opposes any kind of drilling that endangers water and the environment. “It’s one of those things where the demand is unreasonable.”

He also objects to a condition in the ordinance that stipulates that in order for it to be changed or repealed, a unanimous vote of the council followed by approval by two-thirds of city voters would be required.

The measure was drafted with the help of the Community Environmental Legal Defense Fund, a Mercerberg, Pa., non-profit, public interest law firm.

It states that its purpose is to “recognize that water is essential for life, prosperity, sustainability and health” and that “damage to the natural groundwater and surface water sources imposes a great tangible loss to the people, natural communities and ecosystems of the City of Las Vegas, not just for today but for future generations.”

Ortiz says he’s all for that, “but it needs to be in compliance with federal, state and local laws.”

In July, the mayor signed an executive order that establishes a moratorium on fracking – a process that involves injecting large volumes of water and sand laced with chemicals into shale to break apart rock and unlock reservoirs of oil and gas – within the city limits. And last week the City Council passed a moratorium on oil, gas and geothermal drilling.

But that hasn’t stopped community members from speaking out against the mayor for not signing the community rights ordinance.

At the council’s Sept. 19 meeting – the same one at which the council approved the moratorium – many people showed up wearing black T-shirts with Ortiz’s picture and the message “sign or resign.”

They contend that the mayor is violating state law by refusing to sign the ordinance and suggested that a court be allowed to decide whether the ordinance was constitutional.

At times, the meeting became contentious, with City Attorney Dave Romero doing his best to maintain order.

In a phone interview Tuesday, Romero said without a doubt the ordinance is unconstitutional, and that’s why the mayor refused to sign it, effectively vetoing the measure. “To sign a document that declares those sacred documents – the city charter, the New Mexico Constitution and the U.S. Constitution – are inapplicable would violate the oath of office he swore to uphold,” Romero said.

“Most people you talk to in the area are against hydraulic fracturing,” he said. “They don’t want to risk the environment to oil and gas drilling. But hidden within the ordinance are radical, inappropriate statements that essentially claim that no other entity governs when it comes to this particular ordinance. … It takes away rights of due process and property.”

Supporters want court decision

But members of the Community for Clean Water Air and Earth disagree.

Lee Einer, a board member of the group, said the Las Vegas ordinance is similar to 140 other ordinances in place throughout the country, many of them in Pennsylvania where communities have been fighting fracking for a decade.

“It’s a new structure of ordinance and a new area of law, and it’s a little early to reject out of hand,” Einer said.

“There is a way to test that theory,” he added. “Let it play out in court.”

Einer also contends the mayor’s signature isn’t necessary. “A signature from mayor is not required for it to be in affect,” he said. “The mayor signing it is clerical. When it’s approved by a governing body, it’s enacted into law.”

Paula Hern, another CCWAE board member, said: “We want to maintain our water rights and also have self government in our community that says we don’t want corporations coming into our community. This gives us the ability to say ‘we are the people.’ ”

Asked about the constitutionality of the ordinance, Hern said, “What people don’t understand is sometimes we have to step outside the boundaries of the Constitution to get things done. Laws are made to protect corporations and we need laws that protect Mother Earth – earth, air and water.”

Hern said there is now a petition circulating encouraging the San Miguel County Commission to adopt a similar community bill of rights. She said the petition could contain as many as 2,000 signatures when it is submitted to the county clerk, likely sometime this week.

The San Miguel County Commission released a draft of a proposed ordinance regulating oil and gas operations last month. Dates for public hearings have yet to be scheduled. The county already has a moratorium against gas and oil drilling.

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