‘No Fences in the Valley’
'In Mora, oil and gas corporations, by strength of local law, are not allowed to plunder Mora's earth and spoil its increasingly precious waters.'
“If you dare to struggle, you dare to win. If you dare not struggle then damn it, you don't deserve to win.” --Fred Hampton, August 1969, People's Church, Chicago
It's the one-year anniversary of the enactment of the anti-fracking ban in Mora County, and despite two pending lawsuits the Ordinance is still the law of the land. In Mora, oil and gas corporations, by strength of local law, are not allowed to plunder Mora's earth and spoil its increasingly precious waters.
But as David Correia writes in Properties of Violence, Law and Land Grant Struggle in Northern New Mexico, “law is a site of social struggle where claims over property are constructed and contested...while the law can be said to mediate conflicts, it can also produce the conditions for those conflicts.” It's those very conditions that the Ordinance redresses, blowing away “law” that undemocratically privileges corporate rights over individual rights.
It's been an eventful twelve months. Here's a quick recap of events to date:
April 29, 2013, Mora County Commission enacts the “Mora County Community Water Rights and Local Self-Government” Ordinance, the first countywide ban of fracking in the nation. (For an excellent summary of events leading up to the enactment of the ordinance please see http://lajicarita.wordpress.com/2013/05/07/mora-county-takes-a-stand/)
November 15, 2013, Mora County is sued in federal District Court by the trade group Independent Petroleum Producers of New Mexico, landowner Mary L. Vermillion, the JAY Land Ltd. Co., and Yates Ranch Property. The suit claims violation of their rights under the First, Fifth and Fourteenth Amendments to the U.S. Constitution.
November 26, 2013, Mora County Commission votes unanimously to defend its Ordinance, which bans oil and gas extraction and other hydrocarbons within Mora County. The Commission also voted to hire Community Environmental Legal Defense Fund (CELDF), the New Mexico Environmental Law Center, and Santa Fe attorney Dan Brannen, a CELDF associate, to defend the Ordinance.
January 10, 2014, SWEPI LP, a U.S. subsidiary of Royal Dutch Shell PLC, files a federal lawsuit against Mora County, claiming the Ordinance violates state law and the U.S. Constitution's equal protection and commerce clauses, amounts to taking property without compensation, conflicts with U.S. Supreme Court rulings that gave legal rights to corporations, and violates other state and federal laws.
January 27, 2014, Mora County Commission is served with the SWEPI lawsuit.
February 14, 2014, the Commissioners again vote unanimously to defend the Ordinance.
March 6, 2014, Mora Land Grant and Jacobo Pacheco, Individual Intervenor, file a Motion to Intervene and a Memorandum in Support thereof, in the SWEPI suit. The Mora Land Grant has 66 individual members, descendants of the original families who received the land grant in 1835, when the area was part of Mexico. The land grant was patented by the U.S. Congress in 1876 and is a political subdivision of the state of New Mexico, managed by a board of trustees. It is represented pro bono in these matters by Jeffrey Haas.
April 8, 2014, Mora County Commission passes a resolution not to oppose the Intervention and retains Jeffrey Haas pro bono as defense counsel in the Vermillion lawsuit.
Current Moment, The Mora Land Grant, or as it is known more lyrically in Spanish, La Merced de Santa Getrudis de lo de Mora, is awaiting the ruling of the New Mexico federal District Court on its Motion to Intervene.
While here in Santa Fe local media noted the event of the Land Grant joining the Mora County Commission in its fight against big oil and gas, I sought from the affected parties a fuller explanation of the significance of the Motion to Intervene.
“This political moment may never come again, and the Mora Land Grant was not willing to sit back and take a wait and see attitude,” Jacobo Pacheco, a member of the Land Grant and Individual Intervenor, told me. “We here in Mora have historically defended and protected our land. We were one of the last bastions of resistance to the invading U.S. Cavalry during the Mexican-American War. Moreover, our people have even formed citizen posses (Las Gorras Blancas) who patrolled our land cutting fences that the land thieves had erected.”
Mr. Pacheco is clear-sighted about the traps inherent to a regulatory approach. “The state regulatory authorities do not have enough manpower or a budget sufficiently robust to engage in any meaningful regulation,” he explained. “In such an environment, rules can easily be circumvented with a bit of ingenuity. Moreover, since the petroleum companies managed to exempt themselves from the Energy Policy Act of 2005, there exist no bona fide federal regulations.” He likens allowing frackers into the county to tolerating rattlesnakes in the garden. “Some activities are inherently dangerous, they can inflict irreparable harm, and should be prohibited, not regulated.”
When it came time to lawyer-up, the Mora Land Grant secured a seasoned veteran of major civil rights legal battles. “We have a strong interest in this fight and wanted to jump in. Jeffrey Haas was on a list of lawyers who'd volunteered to help in the struggle,” Mr. Pacheco explained. “We reviewed his tremendous and impressive record of civil rights advocacy, and we reached out.” Haas is one of the founding members of Chicago's People's Law Office and represented members of the Black Panther Party.
The book has been optioned for a movie!
Haas, who is a father of four, is deeply concerned about “the habitability of the planet for the next generation or two.” Concern over future climate crises and wars over scarce resources impelled him to offer his legal services “to support the people who are standing up.” The work involved is considerable. The day before we met, Haas, a 71 year-old Santa Fean, had driven the two hours back and forth to Mora to attend a six-hour meeting, one of several such long hauls.
Pro bono means that Mr. Haas will not be receiving any compensation for his legal services, but can recover costs for copying, travel and expert witnesses. To that end Mr. Pacheco has created a website where supporters can learn more about the dangers and harms caused by fracturing, and where they can donate funds to help defray expenses. “As a practical matter,” Pachecho explained, “this litigation could go on for 2, 3, 4, 5, 6, 7 years, and we have to be prepared.”
According to Haas, the Land Grant is a political entity that can sue and be sued and its move to intervene is both symbolic and substantive. “It shows a broad base of support by and for Mora by people with a history in Mora who don't want drilling. It heightens public awareness generally, by drawing attention to the uneven playing field. And it's another avenue to express the voices of the people who want to shore up the defenders of the Ordinance, some of whom may be feeling the pressure.”
And the stakes are enormous. In the first case--the Vermillion case--the plaintiff's do not seek damages but do seek attorney's fees, “which could be a lot,” according to Haas. “But the judge would have a lot of discretion there. In the second case (the SWEPI lawsuit) damages are sought, but the irony is that if they were to win they will have incurred no damages.” But if Mora were to lose, any fees would be mere insults to the more perilous injuries to its ecosystem. “In Mora, hunting and fishing is a way of life, and water is absolutely critical,” Haas explained.
Quoting from the Memorandum of Support to the Motion to Intervene, the Land Grant seeks to be a party to the legal fight because:
“Mora County is a municipal corporation. Mora County residents possess rights
under the Ordinance which are distinct from the powers of Mora County. The Ordinance
does not secure Mora County’s rights. It secures the rights of Mora County residents and
Mora County communities. As the very purpose of the Ordinance is to enumerate and
secure their rights, the interests of Pacheco and the individual members of the Mora Land
Grant are clearly at stake.”
The Land Grant hopes to.make challenges with respect to the legitimacy of land ownership and how sub-surface rights were passed on. It also hopes to show how damaging fracking would be to the quality and quantity of water in Mora County, and how land values would be adversely impacted by diminished and polluted water supplies. As Haas explained it to me, “As the runoff from the mountains is depleted due to drought or climate change, the sub-surface water becomes even more critical for survival.”
Haas hopes there will be a complementary relationship between the CELDF legal team and his own. “CELDF has been instrumental in drafting and supporting the ordinance nationally, and we offer a local component defending local communities.” There are two lawyers, one in California and another in Washington State, who are assisting Haas with legal research, while he keeps them apprised of political developments. Together they come up with new arguments, new theories, some of them reaching back to the Declaration of Independence.
A grotesque irony of the Pleadings is that corporations are now using the Civil Rights Act to assert that due process and equal protection must be extended to them on account of their corporate personhood. In the Answers, the Mora Land Grant will deny the allegations, demand proof of them, and move to dismiss the suit. “It's exciting, challenging and daunting,” Haas confessed. “Fred Hampton's example helps me keep going, keep pushing. I think, what would he say or do? I try to live up to that. There's a legacy I feel I have to uphold.”
A revolutionary legacy?
“Yes, in many ways. Not grab a gun and shoot something, but a deep feeling that the system must dramatically change-- the power has to go to the people. We can't separate social justice from environmental justice. Often climate disasters affect the poorest countries and people the most.”
Gilbert Quintana, Vice President of the Mora Land Grant, told me that while he lives on the same land where his great-grandparents resided, the 826,000 acres of commonly held land that comprised the land grant are dispersed among private owners. “People sold us out. There was thievery, chicanery, people were bamboozled. The fact is ours is a landless land grant.”
This history of dispossession by hook or by crook is common in northern New Mexico. Mr. Quintana is well aware of the legacy of struggle recounted in the Correia book—Alianza, The Courthouse Raid, all of the vigorous protests by the Chicano communities during the sixties and 1970's when they realized the extent of the ripoffs. And while that history both contextualizes the current struggle and offers inspiration, for Quintana the strong sense of resistance to “kings and queens, masters, or now, corporations” is even more personal than that. “The grandparents would tell us of the time when there were no fences in the valley.”
Mr. Quintana, who describes the current battle as “lopsided” between a poor rural county and the “biggest corporation in the world,” believes that like Biblical David, Mora will be victorious against its Goliath. “Often the strength of Power is exaggerated, while the Underdog's is underestimated. Our limitations force us to be more creative.”
His vision for the county is as a “food sovereign” area where the people produce food in pristine conditions--“good air, water and land.” To the frackers he would say, “We'll sell you food when you need it, and we'll buy your gas. We're not hypocrites, we'll share what we have, but we don't want your drills here. In this, we are governed by our belief in the land and in our roles as protectors of the land.”
Happy Anniversary, Mora--let's celebrate, let's dance!