Legal challenges to Project Jupiter funding meet headwinds

LAS CRUCES — In Santa Teresa, construction is rapidly moving forward at the site of a planned data center campus supporting AI technology.

Meanwhile, $165 billion in industrial revenue bonds and other public incentives authorized by Doña Ana County commissioners supporting the project are facing legal challenges and criticism from a government transparency watchdog group.

In court, the county is seeking dismissal of two lawsuits requesting judicial review of the industrial revenue bond ordinance, and the community organization Empowerment Congress of Doña Ana County has withdrawn as a plaintiff in one of the civil complaints at the request of its nonprofit corporate parent, the Community Action Agency of Southern New Mexico. The CAA adopted Empowerment Congress nearly a decade ago.

CAA also confirmed that Empowerment Congress director Daisy Maldonado, who had worked for the organization since 2019 and was a vocal opponent of Project Jupiter, is no longer an employee. CEO Dawn Hommer emphasized that CAA has not taken a public position regarding the data center.

“This has been an extremely difficult year for nonprofit organizations like ours,” Hommer said. “We want to focus on keeping our doors open so we can provide direct services to New Mexican families.”

Maldonado did not respond to queries from the Journal.

The CAA board of directors first learned of Empowerment Congress’ litigation through news reports, Hommer told the Journal. As the lawsuit had not been authorized by CAA, she said Maldonado was directed to remove the organization from the lawsuit, although the employees named as individual plaintiffs were free to continue.

“After waiting a week, our attorney had to intervene,” she said.

The commissioners voted 4-1 in September to approve the historically large industrial revenue bond sale after weeks of local controversy ranging from opposition to the project to complaints that questions about water consumption, carbon emissions and other impacts had gone unanswered.

Town hall meetings leading up to the vote featured contentious debate between opponents and skeptics on one side and, on the other, boosters highlighting economic development and potential revenue for local infrastructure.

Weeks later, opponents filed two court petitions in New Mexico’s 3rd Judicial District asking for a review of the ordinance, claiming it was not lawfully enacted by the commissioners.

Empowerment Congress filed one of those petitions, along with organizers Vivian Fuller and Jose Saldaña. They also asked for a review of commissioners’ approval of Local Economic Development Act funding for the project, arguing Project Jupiter was not legally eligible.

Las Cruces resident Derrick Pacheco filed a petition of his own arguing that commissioners acted improperly in approving the bonds while the project’s land-use authorization was pending before the county Planning and Zoning Commission. He also challenged the basis for approving the ordinance despite some documentation being missing from the commissioners’ packets — an issue that had been raised in public session by Commissioner Susana Chaparro, who voted against the measure.

In a motion requesting dismissal of the claim, the county says Pacheco, a non-attorney representing himself, invoked the wrong legal procedure for challenging an ordinance and, in any case, did not cite a legal error in the IRB’s passage.

The Fuller/Saldaña petition seeks a declaratory judgment invalidating the IRB ordinance, but in court filings the county calls it “an improper attempt to use the courts to halt legislation they dislike.” The county argues that the ordinances only incentivize economic investment in the community and no actual injuries resulting from the ordinance had been presented.

“The Ordinances do not authorize construction, emissions, water usage, or operations,” the county stated in a motion filed Nov. 20. “Every alleged harm to the Plaintiffs depends on future action by both the applicant and other government entities.”

The Fuller/Saldaña lawsuit has been assigned by the state Supreme Court to state District Judge Jennifer DeLaney from the 6th District, after the 3rd District judges recused themselves or were excused. Pacheco’s case appears to be on a similar course.

FOG flags open meetings law

The New Mexico Foundation for Open Government, a nonprofit that advocates for government transparency and state sunshine laws, sent notice to the commissioners that, in FOG’s view, the county had not sufficiently cured a violation of New Mexico’s Open Meetings Act at the September meeting.

At the Sept. 19 session, Chairman Christopher Schaljo-Hernandez made a motion to go into closed session without clearly stating what was to be discussed outside of open session. The law requires a public body to state the topic of discussion and the legal provision permitting the closed-door discussion “with reasonable specificity.”

In response, the New Mexico Environmental Law Center submitted a notice of violation, initiating a 15-day window for the county to cure a violation, if it occurred, and avoid litigation.

At a subsequent meeting on Oct. 14, the commissioners voted to approve a retroactive clarifying statement about the motion to go into closed session, stating that the information discussed was “covered by attorney-client privilege pertaining to threatened litigation concerning Project Jupiter.”

“This type of attempted retroactive ratification of a prior illegal action by a public body is prohibited by (the Open Meetings Act), and the Board’s violations of OMA with respect to the closed meeting on September 19, 2025, remain uncured,” FOG Legal Director Amanda Lavin wrote to the commissioners.

Kacey Hovden, lead attorney for NMELC, concurred, telling the Journal: “We agree with NMFOG’s analysis that the violation from September 19th is still standing.”

Furthermore, FOG argued the commissioners also violated OMA when it approved the industrial revenue bond ordinance even though some pages were blank and marked “draft.” The ordinance stated that the board chair and vice chair were authorized to approve the final version — after the commission voted and outside of open session.

Under the law, actions taken in violation of the Open Meetings Act are invalid, which, if upheld by a court, would mean the ordinance authorizing the sale of industrial revenue bonds for Project Jupiter is not in effect.

“Doña Ana County has until December 1 to respond (to the notice of violation) and intends to do so,” county spokesperson Ariana Parra told the Journal. “In the meantime, the county will not comment any further until we have officially responded to the notice letter.”