Monday, November 18, 2013 | Energy Wire, an E&E Publishing Service | Mike Lee, E&E reporter
A fracking ban in a swath of rural New Mexico has led to a federal lawsuit involving the Constitution, the Supreme Court’s Citizens United decision, indigenous water rights, the treaty that ended the Mexican War of 1848 and one of the best-known oil-drilling families in the state.
It could be a precursor to disputes around the country as local governments attempt to ban drilling and hydraulic fracturing. The oil industry is concerned about environmental groups’ ability to sway small-town voters. Four local bans won at the polls in Colorado earlier this month.
Mora County’s drilling ban was written with help from the Community Environmental Legal Defense Fund, or CELDF, which helped write a drilling ban in Dryden, N.Y.
The group is “going around the country and trying to get this adopted,” said Karin Foster, a spokeswoman for the Independent Petroleum Association of New Mexico. “We felt the time was now to actually fight it.”
Mora County, just northeast of Santa Fe, has a population of about 5,000 and no oil or gas drilling. The three-member county commission passed an ordinance in April that bans not only drilling, but also the use of water for hydraulic fracturing — the water-intensive method used to access shale formations. It goes on to say that corporations violating the local law won’t have the rights of “persons” under the U.S. and New Mexico constitutions and cites local residents’ water rights under the treaty of Guadalupe Hidalgo, which ended the U.S.-Mexican War in 1848 and made New Mexico a U.S. territory.
“Natural communities and ecosystems including, but not limited to, wetlands, streams, rivers, aquifers and other water systems, possess inalienable and fundamental rights to exist and flourish within Mora County against oil and gas extraction,” the ordinance says. “Residents of the county, along with the Mora County Commission, shall possess legal standing to enforce those rights.”
Kathleen Dudley, an organizer with CELDF, said the ordinance was intended to make a point about the power of corporations and the need to shift the balance of political strength back to ordinary voters.
“We don’t have a fracking problem, we have a democracy problem,” Dudley said.
The New Mexico Independent Petroleum Association and two landowners have sued in federal district court, asking a judge to rule that the county ordinance contradicts state and federal law. The ban on drilling violates the U.S. Constitution’s guarantees of due process and the Constitution’s prohibition against governments taking private property without compensation, the suit says.
As for whether corporations have the same rights as people, the suit cites the U.S. Supreme Court’s controversial 2010 decision in Citizens United v. the Federal Election Commission. The decision overturned a federal ban on the use of corporate money for independent political ads, saying the restrictions were a violation of the Constitution’s free-speech guarantees.
Among those suing Mora County are Yates Ranch Property LLP and JAY Land Ltd., which own the 125,000-acre Ojo Feliz Ranch in Mora County.
The Yates family is descended from Martin Yates, who drilled the first commercial well in southeastern New Mexico, Foster said. The family-owned Yates Petroleum Corp. is among the biggest privately owned oil producers in the country, according to published reports, and it owns oil and gas leases in Mora County.
A company spokesman declined to comment, but Yates Petroleum makes its views on government plain in the company history on its website: “From surviving a tornado to hanging on against the fierce winds of regulatory adversity, the Yates have stood together.”
Foster, with the petroleum association, said other New Mexico counties have passed ordinances that protect water without outright bans on drilling. Santa Fe County, for instance, required companies to build all the necessary roads and infrastructure for an oil or gas field before receiving a permit to drill.
If Mora County were truly concerned about water quality, it would have restricted other industries, such as agriculture, the suit says.
John Olivas, a fifth-generation New Mexican who is chairman of the county commission, said the county has been discussing the need to protect its water since about 2006, when companies first began leasing drilling rights. The commissioners were also concerned about the low prices that oil companies offered to Mora County residents for leasing their drilling rights, he said in an interview.
Olivas works as a hunting guide and also does consulting work for the New Mexico Wildlife Federation and other environmental groups. He said the county wasn’t looking for a legal fight, but understood that the ordinance would create controversy.
“That was a stance that we took — a little, small community in northern New Mexico standing up to a giant corporation,” he said.
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