MORA – In less than two weeks, Mora County voters will go to the polls to select a majority of the County Commission and, this year, the small, rural county has an issue that’s attracted national attention.
The contests in the Democratic primary have turned into something of a referendum on a controversial ordinance that attempts to put the rights to natural resources, specifically oil and gas, in the hands of communities over the interests of corporations.
Mora’s Community Water Rights and Local Self-Governance ordinance is unique. The Mora County Commission last year became the first governing body in the country to adopt such a law. It puts the 1,933 square miles that make up the scenic and sparsely populated county in northern New Mexico off limits to hydraulic fracturing, or fracking, the process of injecting water and chemicals at high pressure into cracks beneath the earth’s surface to more easily access oil and natural gas.
Two of the three members of the commission – one who voted for the ban and one who voted against it – are up for re-election. But the legality of the law will ultimately be determined by a judge.
Two federal lawsuits have been filed challenging the ordinance – one by private landowners and the Independent Petroleum Association New Mexico, and the other by Shell Western E&P Inc., or SWEPI, a subsidiary of Royal Dutch Shell, the second-largest revenue-generating company in the world.
“We knew it was going to be challenged in the court system,” said John Olivas, the District 2 incumbent and, as commission chairman, the driving force behind the ordinance. “But I’d rather fight industry in the courts than clean up their mess when they’re done.”
Though she voted against the ordinance a year ago, incumbent Commissioner Paula Garcia says she supports the spirit of protecting the county’s land and water. She voted “no” because she had concerns over an ordinance that gives rights to nature, strips corporations of personhood and allows local laws to trump federal law – provisions critics have said doom it in the courts.
Garcia still has those concerns and another one. She’s worried about the impact the lawsuits could have on the cash-poor county.
“Until the lawsuits were filed, we did not know the litigation could result in costs to the county for damages and plaintiff’s attorney’s fees,” she said, adding that she is appreciative of the out-of-state law firm that is defending the county pro bono.
“There is a lot of uncertainty for the county with regard to cost,” she said.
First of its kind
The ordinance states that residents of Mora County – and there are less than 5,000 of them – have an inherent right to govern their own community, citing the 1848 Treaty of Guadalupe Hidalgo, the U.S. Declaration of Independence, the New Mexico Constitution and the county’s Comprehensive Land Use Plan.
In part, it says “two centuries worth of governmental conferral of constitutional powers upon corporations has deprived people of the authority to govern their own communities, and requires us to take affirmative steps to remedy that usurpation of governing power … .”
The lawsuit brought by the landowners and Petroleum Association argues the county lacks authority over oil and gas activities, and it’s the state’s responsibility to regulate drilling. It claims protected rights under the U.S. Constitution, and asks the court to overturn the ordinance and award attorney’s fees. The Shell Western lawsuit asks for the same thing, plus damages for lost revenue.
Mora’s ordinance was drafted with the help of the Community Environmental Legal Defense Fund, a Pennsylvania-based nonprofit public interest law firm that has worked with roughly 150 mostly East Coast communities in revising local laws.
Serving as in-state counsel defending the county in the Petroleum Association case is the New Mexico Environmental Law Center.
“Mora County is on the forefront of this movement to regain local control of natural resources,” said law center attorney Eric Jantz. “If the Constitution should have any meaning, it should mean that communities should have sovereign rights to shape their own state. They shouldn’t have to worry about industry coming in if they don’t want them.”
Jantz says the oil and gas industry is trying to “bully” a cash-poor, rural county by bringing the lawsuits. “Santa Fe County has a solid regulatory ordinance that hasn’t been challenged at all. That could indicate oil and gas has found a county that it thinks is easy to push around,” he said.
That’s not it at all, says Karin Foster, executive director of the Petroleum Association. “The fact of the matter is Mora is the first county in the entire country to do an outright ban on drilling,” she said. “This is not a moratorium, this is a permanent ban.”
What advocates call a “community rights” ordinance, she calls “anti-business.”
“It basically says corporations coming in to new areas are unwelcome and a local minority of private citizens have a right to infringe upon property owners’ civil rights and limit corporations from free speech,” she said. “It ignores the constitutions of the United States and the state of New Mexico.”
Foster notes that about one-third of the state’s budget is funded by gas and oil revenues, and relies heavily on the land grant permanent fund, which provided about $577 million to public schools, universities and hospitals in fiscal year 2013.
Foster contradicts claims made by Olivas and others that the oil and gas industry wasn’t interested in Mora County prior to the ordinance passing last year because there wasn’t much product to be found.
She says there have been 122 leases executed by the state land office in Mora County in the past four years and that geological studies indicate there is a significant basin of natural gas under an eight-county region that includes Mora.
She suggested that Olivas, an outfitter by trade and northern director of the conservation group New Mexico Wilderness Alliance, is carrying out his personal agenda and passed a “bad law” by depriving the cash-strapped county of a potential economic boom. The county’s unemployment rate of 13 percent is the second highest in the state, according to the New Mexico Department of Workforce Solutions.
“Mr. Olivas is out of touch with who he represents,” she said. “I can guarantee you that, if oil and gas came, there would be plenty of economic benefit for the county.”
Opposing views in District 2
Olivas doesn’t deny his love for the outdoors and interest in preserving the environment.
“When people question me, I tell them to look at my background,” said Olivas, who has a master’s degree in environmental science and whose family has resided in Mora County for five generations. “Protection of the land is most definitely important to me.”
But Olivas says that, as a public official, his interest in protecting the land is grounded in the county’s agriculture-based economy. “Our initiative right now is to get people back on the land, utilize the water, and grow vegetables and fruits,” he said. “Instead of a supply-driven economy, ours is demand-driven and we don’t have enough farmers to grow what’s expected of us. So we want to push eco-tourism in the valley to showcase what we have here … . It’s an untapped market.”
With an annual budget of about $1 million, Olivas says that Mora County lacks the resources to support the influx of industry. There’s little housing available, public safety resources are thin and there are no hospitals.
Olivas said the county doesn’t have the money to take on the task of regulating the oil and gas industry.
“The only two options we had available to us was to either regulate them or ban them and we chose to ban,” he said. “We’re taking a stance and asking, ‘Why can’t we govern ourselves? Why is it so wrong to say ‘no’ to oil and gas, and that we want our resources protected?'”
For too long, Olivas said, the oil and gas industry has had its way. The lawsuits really aren’t about drilling for oil and gas in Mora County, he said, but about the industry’s ability to stake a claim. “The thing with Mora is Mora said ‘no,’ and, because Mora said ‘no,’ they have to squash us,” he said.
Olivas has two opponents in the June 3 primary. There’s no Republican candidate.
Judging from yard signs around the area, his biggest challenger is George Trujillo, a retired Department of Transportation employee who favors regulation, not a ban.
“I believe that Mora County should develop regulations and protocols that have a legitimate chance of being upheld,” Trujillo said, adding that he has “serious concerns” that the lawsuits put the county in peril. “This puts the county government at risk and local taxpayers will ultimately foot the bill. That’s not acceptable.”
Trujillo said taxpayer money would be better spent on other needs, such as emergency medical response services, roads and facilities, including a partially built county courthouse that’s stood unfinished for years.
He says he’s not convinced allowing drilling would provide the county with long-term benefits, but, “In the final analysis, I believe it is still possible to protect our land, water and air in ways that are both responsible and constitutional.”
There’s no big money showing up in the race so far. Olivas has raised the most, $10,556, including $4,800 of his own money and $2,500 from Washington, D.C.-based investment counselors Bonness Enterprise, Inc. Former CIA operative outed by the Bush administration and author Valerie Wilson chipped in $25 and former state land commissioner Jim Baca contributed $50.
The Secretary of State’s Office shows only one of two reports required of Trujillo in the campaign season to this point. He’d raised $1,250 as of April, including $250 from an Albuquerque political action committee called Justice for America Inc.
The other candidate in the race is Randall Regensberg. He did not return phone calls this week at a number provided by the county clerk’s office. His campaign finance reports show no money raised or spent.
All want the same thing
In the District 1 Democratic primary, Joseph “J.D.” Weathers is running against Garcia for the right to face Republican challenger Tim Fresquez in the general election.
Weathers said Garcia says has been wishy-washy on the fracking issue.
He noted she voted against the ordinance as a county commissioner, but subsequently voted to defend the ordinance. In her role as president of the Mora Land Grant Board, she was in the minority in voting against intervening in the Petroleum Association lawsuit.
“She changes her mind from one day to the next,” he said. “She hasn’t done anything to try to create regulations or anything. She was on the political fence to see which way it would go.”
Weathers said his position is clear. “I’m against fracking,” he said. “I don’t think the short-term economic benefits can make up for the long-term environmental damage that could happen here in Mora County.”
Weathers fears what happened at the Summitville gold mine in southwest Colorado in the 1980s, when an accidental leakage of mining by-products contaminated local waterways, could happen in Mora.
“The Alamosa River ran yellow for a long time. That’s why my concerns about fracking are what they are,” he said. “People need to educate themselves about fracking. The benefit for employment doesn’t do that much, and studies show there isn’t that much oil and gas out here. These companies just want to come in and rape and pillage.”
As for the county’s “community rights ordinance,” Weathers said that horse has already left the barn. “At this point, since it’s being litigated, I believe we have to let it go through the court system to see if it stands or gets turned down,” he said.
Garcia insists her position on the law hasn’t changed. “My position has been consistent that Mora County would be best served by an ordinance that has a fighting chance of being upheld in the courts,” she said. “While it gives the county and well-intended advocates an opportunity to make some good faith arguments about injustices in the U.S. legal system, I thought it was very vulnerable to being overturned by a judge.”
Garcia explained she voted against the land grant board intervening because of potential conflicts of interest and was afraid its intervention could prolong court proceedings.
She said Mora County residents want the same thing but differ on the best approach to obtaining it.
“I believe all the people in Mora County want to protect our clean water, land and air, and the vast majority of them would like to keep oil and gas drilling, and fracking in particular, out of their communities,” she said. Garcia added: “People who support the current ordinance and people who do not support the ordinance differ on strategy, but all want the same outcome – protections for the well-being of our families and communities.”
This puts the county government at risk and local taxpayers will ultimately foot the bill.