Environmental group sues county over Project Jupiter financing

LAS CRUCES — Doña Ana County is facing a new lawsuit pertaining to its support for Project Jupiter, the AI-training data center complex under construction in Santa Teresa.

The new claim, brought by the New Mexico Environmental Law Center, alleges commissioners violated the state’s Open Meetings Act on the brink of its approval, last September, of $165 billion in industrial revenue bonds in addition to other incentives helping finance the private development. Developers BorderPlex Digital Assets and Stack Infrastructure are building the facility for tenant Oracle, which will operate the center on behalf of OpenAI.

The lawsuit alleges the commissioners violated the law by going into closed session during the Sept. 19 meeting as they were discussing the controversial measure during an open session packed with supporters and opponents of the project.

“The sunshine laws in our state, like the Open Meetings Act, exist to ensure that when public government bodies make decisions that stand to impact communities’ health, safety, environment, and lives — these decisions are made in the public eye where community members have the opportunity to meaningfully participate and inform the outcome of their futures,” Environmental Law Center staff attorney Kacey Hovden stated in a news release.

New Mexico’s open meetings law generally requires public business to be discussed in public, with certain exceptions. Public bodies may enter into closed session, but the law states, “...the authority for the closure and the subject to be discussed shall be stated with reasonable specificity in the motion calling for the vote on a closed meeting.” 

The county board chairman at the time, Commissioner Christopher Schaljo-Hernandez, made a motion to go into closed session at the Sept. 19 meeting without stating what qualifying topic was to be discussed behind closed doors. 

The closed meeting was not on the agenda and Schaljo-Hernandez read from a written description of reasons public bodies may enter closed session, broadly stating the meeting was “for a limited personnel matter, the purchase, acquisition or disposal of real property and water rights, and to discuss information covered by attorney-client privilege pertaining to threatened or pending litigation, as authorized by § 10-15-1(H)(2), (7), and (8).”

In the seconds following, after commissioners voted to go into closed session and began to leave the chambers, several people in attendance called for more specificity. The interim county attorney, Cari Neill, responded from the dais that the discussion would be for “attorney-client privileged matters” and declined to elaborate.

The Environmental Law Center filed a notice of violation to the county soon after, providing 15 days for the county to cure a violation, if it occurred, and avoid litigation. At a subsequent meeting in October, the commissioners retroactively approved an amended version of Schaljo-Hernandez’s motion, this time stating that the information discussed was “covered by attorney-client privilege pertaining to threatened litigation concerning Project Jupiter.”

In its complaint, filed in New Mexico’s 3rd Judicial District on Feb. 6, the ELC says the county defended the closed meeting by stating it presumed the public would understand that Project Jupiter would be the topic of discussion, since the closed meeting occurred while a motion was on the table.

The ELC argues that the closed session was not properly noticed in advance and that its explanation during the meeting was insufficient. It further contends that the county’s action to cure the violation in October still did not meet the law’s requirements. If a court agrees, it could render the subsequent actions invalid and potentially disrupt financing for Project Jupiter unless the county cures the violation to a judge’s satisfaction.

As a recent example, the city of Las Cruces held a special session last year to cure alleged open meetings violations in the hiring of its city manager at the urging of the New Mexico Department of Justice.  The matter was resolved without a lawsuit. 

The ELC lawsuit asks the court to find that the county violated the Open Meetings Act, void two ordinances supporting Project Jupiter financing and order any funds distributed to be returned, as the contractual terms would be legally invalid. The lawsuit is also seeking recovery of legal fees and court costs.

The lawsuit had yet to be formally served to the county, according to court records on Tuesday. A spokesperson for the county did not respond to a query from the Journal, but the county typically refrains from commenting on open litigation. 

Algernon D'Ammassa is the Journal's southern New Mexico correspondent. He can be reached at adammassa@abqjournal.com.