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Did a strict fracking ban take a small New Mexico county for a ride?

By   /   February 13, 2015  /   News  /   No Comments

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FRACTURED COUNTY: An ordinance that was tossed out of federal court banning hydraulic fracturing may cost a small county thousands in court costs.


By Rob Nikolewski │ Watchdog.org

To defenders of what was considered the strictest fracking ban in the nation, there are no second thoughts about getting a small county in New Mexico to pass what appeared to be a test case challenging not only the oil and gas industry but also the legal definition of corporations.

For others in scenic but economically modest Mora County, there’s suspicion the county’s taxpayers have been taken for a ride now that a federal judge tossed out the sweeping ordinance in a bluntly worded, 199-page ruling that may stick the county with the tab for “tens of thousands to hundreds of thousands of dollars” in opponents’ legal fees.

“No regrets on my part, no,” said John Olivas, a former county commissioner who teamed up with an environmental organization in Pennsylvania to craft and spearhead the ban’s passage in 2013. “I will continue to advocate for our community outside the county commission to keep this kind of industry out.”

But county resident Frank Splendoria, who opposed the ordinance from the get-go, sees it differently.

“It was totally foolish to begin with, to even try this,” Splendoria said. “How do you pass an ordinance that’s going to override the state and the federal constitution?”

Now, one month after U.S. District Court Judge James O. Browning invalidated the entire ordinance for conflicting with New Mexico law and violating the U.S. Constitution, it looks like the three-member Mora County Commission is trying to find the best way to extricate the county from the whole flap — especially the potential legal bills it faces.

“The commissioners’ concern has always been and will always be the health and safety of the citizens of Mora County, but they’re also concerned about the financial consequences,” said county attorney Michael Aragon.

Aragon told Watchdog.org that last Monday the county commission “terminated our relationship” with Thomas Linzey, a lawyer and executive director of the Community Environmental Legal Defense Fund, and attorney Daniel Brannen, a CELDF associate.

CELDF, based in Mercersburg, Pennsylvania, worked closely with Olivas to model the anti-fracking ordinance.

In an email, Linzey confirmed the ouster but declined comment.

“We just felt we needed to go in a different direction,” Aragon said, adding that the county will continue using Santa Fe lawyer Nancy Long for cases involving the ban.

While Browning has already made his ruling, the county is involved in another case before a federal magistrate judge in New Mexico, brought by at least one Mora County property owner and the Independent Petroleum Association of New Mexico.

Last month, Aragon told Watchdog.org the defeat in Albuquerque federal court may leave the county vulnerable to attorneys’ fees “that could range from the tens of thousands to hundreds of thousands of dollars.”

The potential court costs have some wondering if CELDF used the county to bring a national anti-fracking test case in court.

“I don’t know if they were playing us in Mora County as suckers or they were sincere in their beliefs,” Splendoria said. “I would probably tend to the former rather than the latter, given that Mora County was the first county to try this and failed miserably at it.”

Olivas disagreed.

“Opponents spew propaganda, saying that taxes are going to go up, the county’s going to go bankrupt, that you have this outside group doing all this,” Olivas said. “That’s not true. Those were pro bono services … If we here in Mora County get charged with legal fees, it’s going to be on the hands of those commissioners who fired these attorneys who have all this background and knowledge.”

Olivas was the driving force behind the ordinance that passed the Mora County Commission on a 2-1 vote in April 2013. However, last June Olivas lost his bid for re-election badly, 59.7 percent to 34.2 percent, to George Trujillo who was opposed to the ordinance as written.

Commissioner Paula Garcia cast the only “no” vote in 2013, citing her concerns about the ordinance’s ability to stand up in court. Commissioner Alonso Griego joined Olivas in voting yes.

The Mora County ordinance not only banned oil and gas development but also — based on a model created by CELDF — widened its scope to challenge some of the historical legal justifications for the rights of corporations.

But Browning knocked it down, saying the county ban was an overreach “just to deprive corporations of their rights” that would leave the Constitution “applied in a cookie-cutter fashion across the United States.”

When asked if county taxpayers got taken for a ride, Aragon said, “That’s an excellent question,” and after a pause, continued. “I think we might have not gone into this as a community with our eyes wide open, not understanding the legal consequences. Right now, the county commissioners are being very vigilant and analyzing all legal consequences.”

Olivas said Wednesday he still believes the ban should have been upheld. “It’s not the power of the people,” he said in a telephone interview. “It’s not ‘we the people’ anymore. It’s ‘we the corporations.’ ”

Mora County is one of the poorest counties in New Mexico and has the second-highest unemployment rate in the state.

The potential for legal damages “was a concern of many people to begin with and that may turn out to be the case,” Splendoria said. “I don’t know where we would find the money. If you look at the county’s budget, they barely have enough money to provide the bare essential services … (The ban) hasn’t made any sense to anyone with any sense to begin with.”

“We’re hoping for the best result possible,” Aragon said.


Rob formerly served as staff reporter for Watchdog.org.