Summary Judgement... Modern-Day Luddites in Mora, County, New Mexico

by William Perry Pendley

President Reagan would not have been surprised by the 2-1 vote of the Mora County, New Mexico Commission in April 2013 prohibiting oil and gas activities, not just those using hydraulic fracturing, and waging war on corporate entities. Reagan would have called them “modern-day Luddites.” “For those who don’t know,” Reagan explained, “the Luddites were people who wanted to stop the industrial revolution back in the last century. They took to the streets and tried to smash factory machinery then.”

“Modern-day Luddites,” however, need not take to the streets; instead, they can rush to a courthouse. Declared one, “We’re crazy to sit in trees when there’s this incredible law[, the Endangered Species Act (ESA),] where we can make people do whatever we want.” Therefore, as Stephen Moore wrote in the Wall Street Journal, environmental groups, using the ESA, sue federal officials who in turn quickly settle the lawsuits, pay off the groups and close lands to oil and gas activity.

Meanwhile, encouraged by the lawlessness in Washington, D.C. where federal officials imperially channel Humpty Dumpty (“When I use a word, it means just what I choose it to mean-neither more nor less.”), local officials who want to stop energy development adopt a “sue us if you dare” strategy. Using a perfect storm of environmental extremism, leftwing political demagoguery, and runaway NIMBY-ism (not-in-my-back-yard-ism), these officials blatantly ignore constitutional guarantees and federal and State laws.

Thus it was that Mora County, New Mexico, population 4,881, which sits astride I-25, assisted by a radical “environmental” group from Pennsylvania, adopted a “local bill of rights” that bars use of hydraulic fracturing, forbids all oil and gas development, and strips corporate entities of their constitutional and legal rights across the county’s 1,993 square miles. The Community Environmental Legal Defense Fund, which drafted the ordinance and 150 others like it around the country, says it is part of a “growing people’s movement for community and nature’s rights.”

Although some ordinance supporters are dismayed that Mora County is being used by an outside advocacy group as a “soapbox,” especially given its potential cost-$100,000, even with free lawyers-others are eager to slug it out in court. “We’re ready for this fight,” said one commissioner in response to a lawsuit filed in November by three landowners and a trade organization-the Independent Petroleum Association of New Mexico-asserting a host of constitutional violations and breaches of federal and State law.

Much is at stake. New Mexico has been a major producer of oil and natural gas since their discovery in the State in the 1920s; they are a lynchpin of the State’s economy and are essential for its continued fiscal health. In 2012, 27 percent of New Mexico’s general fund revenues came from taxes and royalties on oil, natural gas, and carbon dioxide production. Over the years, oil and gas activity has contributed over 90 percent of the principal in the Severance Tax and Land Grant Permanent Funds, the earnings on which are used to fund schools, special charities and institutions, and other state governmental operations. Other petroleum tax receipts go directly into the State’s general budget. More than 88,000 New Mexican citizens are employed directly by the oil and gas industry.

Since 1978, that industry has been regulated by the New Mexico Oil and Gas Act, which created the Oil Conservation Commission and Oil Conservation Division; they have complete “jurisdiction, authority and control” over the development of oil or gas. The Division regulates these activities to protect fresh water, public health, safety and the environment and issues rules for “safety procedures for drilling and production of oil and gas wells.”

The battle in Mora County is not about protecting people, land, or water; that is obvious from the ordinance’s narrow, oil patch, focus. Instead it is over the primacy of the Constitution and the rule of law or whether America devolves into Chicken-Little Mob Rule.

Mr. Pendley, a Wyoming ­attor­ney, is President and Chief Legal ­Officer of Mountain States Legal Foundation and a regular ­­c­olum­nist in ­Loggers World.