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Judge queries all sides in suit over Mora County drilling ban

SANTA FE, N.M. — The word “fracking” came up only a few times during the five hours of oral argument in federal court Monday on an oil company’s challenge to a Mora County ordinance intended to forestall the practice – or indeed any kind of oil and gas extraction.

U.S. District Judge James O. Browning posed lots of questions to attorneys for the Royal Dutch Shell subsidiary SWEPI, which is challenging the constitutionality of the Mora County Community Water Rights and Local Self-Government Ordinance of 2013. He did the same to an attorney representing both Mora County and a land grant group seeking to intervene in the action.

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Mora County\’s frist-in-the-nation ban on fracking and other kinds of drilling is being challenged in court. This sign is along NM 518 west of Mora. (Eddie Moore/Albuquerque Journal)

The litigation focuses on the county ban making it “unlawful for any corporation to engage in the extraction of oil, natural gas or other hydrocarbons within Mora County.”

Browning followed his usual practice, telling attorneys his “inclinations” with respect to at least a dozen legal issues but reserving final judgment for his thorough, and likely lengthy, opinion. Browning signaled the likelihood that he will deny the motion to intervene by the land grant and probably find some of the language in the ordinance a violation of federal law – for instance, a segment that denies corporations rights under the 1st and 5th Amendments to the U.S. Constitution.

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Whether that kind of judicial editing would eviscerate the ordinance to the point that it would no longer be viable was among the questions he wanted attorneys to answer.

The courtroom was packed with Mora County residents, many of whom supported the ordinance and murmured during some of the responses in the back-and-forth between the judge and the lawyers – particularly after a statement that one lease covering mineral rights to hundreds of acres was purchased for $8,800.

SWEPI lawyers attached two leases, one lease on state lands and another on fee lands, to a motion asking the judge to rule in their favor based solely on the pleadings.

Santa Fe attorney Jeff Haas, representing defendant Mora County and the proposed intervenor, said he believes there should be an opportunity for discovery, or fact-finding, before the court rules on that matter.

For instance, he said the oil and gas industry is responsible for thousands of leaks or spills in the state that haven’t been cleaned up because there is virtually no enforcement of oil and gas regulations.

“We would like to prove there is no enforcement, and that legitimizes Mora County’s claim,” he said.

John C. Anderson, a Santa Fe attorney representing SWEPI, said the company had spent more than a million dollars on leases and that the ordinance represented an illegal government “taking” of its property.

When Browning asked if it were “inevitable” that the company planned to drill, Anderson said it didn’t have to in order to show the deprivation of rights.

“I agree there’s nothing in the record,” Anderson said, “but this is a company whose business is to produce oil and gas.” Anderson’s co-counsel at one point said SWEPI has “dozens” of leases in the rural county, without giving a specific number.

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