Rivers have rights, they say down in Mora County, New Mexico—“inalienable and fundamental rights,” beyond the power of any government to touch. Aquifers, too. Wetlands, streams, ecosystems, and even “natural communities,” whatever that undefined term means: All of them have rights to “exist and flourish.” The land itself has an “intrinsic right” to “exist without defilement.”
It’s all written down in County Ordinance 2013-01. Mora is a “multi-cultural community with indigenous roots of Many,” the ordinance explains. And thanks to three foundational documents—the 1776 Declaration of Independence, the 1848 Treaty of Guadalupe Hidalgo, and the 1994 Mora County Comprehensive Land Use Plan—everybody and everything in Mora has got rights. Everybody and everything, that is, except the United States government, the New Mexico State government, oil and gas drillers, corporations, and anyone who disagrees with Ordinance 2013-01. They don’t have any rights at all.
Seriously. The ordinance openly names the First and Fifth Amendments when it strips corporations of rights. No freedom of speech or power to petition the government for a corporation, no access to a trial or due process of law. In fact, when the topic is oil and gas, even individual citizens lack rights to sue and have legal judgments enforced—because, in a nice bit of circularity, the very act of suing or trying to enforce a judgment is a crime. Drilling for oil is illegal in Mora County, and so is “seeking to engage in activities prohibited by this ordinance,” which includes filing a lawsuit challenging the ordinance.
Still, none of that can top the truly amazing part of County Ordinance 2013-01. Yes, the preamble and early sections are goo of a high order. The concept of rights is somehow capacious enough that—in a line wondrous in its cluelessness—“ecosystems in Mora County possess a right to a sustainable energy future,” even while the ordinance denounces the extension of the concept to include corporations. And yes, the notion that Mora has the power to ignore “any state or federal agency,” including the U.S. Supreme Court, is something of an overreach.
But the most fascinating moment in the ordinance comes in Section 11, where Mora County, New Mexico—with just under 5,000 people scattered across almost 2,000 square miles northeast of Santa Fe—threatens to secede from the United States if its anti-oil ordinance is attacked or the state and federal governments attempt “to intimidate the people of Mora County or their elected officials.” They’re talking civil war in Mora. They’ve passed a county ordinance that explicitly contemplates taking “actions to separate the County from the other levels of government.”
This January, a year after SWEPI (a subsidiary of Royal Dutch Shell) challenged the ordinance in federal court, District Judge James O. Browning issued a 199-page order striking down the law in its entirety. No oil and gas drilling is actually taking place in the county—and thus none of the fracking the ordinance particularly denounces—but a handful of minor extraction leases do exist. And on the basis of those leases, Browning decided that SWEPI had standing to sue. Its takings and due-process claims were not ripe for federal adjudication, he concluded, but on the rest of the oil company’s constitutional claims, Browning systematically dismantled the county’s arguments.
“Certain provisions of the Ordinance blatantly contradict federal law,” the decision notes. Indeed, if Mora’s claims were upheld, “it would signal the end of all civil rights that the Constitution protects. A county could pass an unconstitutional ordinance, but then say that anyone who challenged the ordinance lacks constitutional rights to support the challenge. The county could enforce its unconstitutional ordinance free of constitutional restrictions, because no one could challenge the validity of the ordinance. The consequences of such an outcome could be devastating to the Union as the Nation has known it since the Civil War.”
That mention of the Civil War is as close as Judge Browning comes to acknowledging the secessionism in Mora County Ordinance 2013-01. The trouble all started when a local anti-drilling activist named Kathleen Dudley caught the ear of John Olivas, chairman of Mora’s three-member county commission. Together, they searched for information on how to ban fracking—the kind of thing recently attempted, more or less successfully, in Denton, Texas, Boulder, Colorado, and Dryden, New York. Unfortunately, what they found was the name of Thomas Linzey, cofounder of the Community Environmental Legal Defense Fund of Mercersburg, Pennsylvania.
By the time Linzey’s law firm was done, the county had a model ordinance that claimed to overrule the Constitution by resurrecting the local-rights arguments of John C. Calhoun in the Nullification Crisis of 1832. “A majority of the county commissioners, and a number of county residents,” a leftist New Mexico lawyer named Lora Lucero complained, “have been hoodwinked by a Pennsylvania law firm to serve as a guinea pig for a legal experiment which will likely cost the county big bucks in damages and attorney’s fees.”
But from the point of view of those carpetbagging lawyers, that was rather the point. People in a small rural county wanted to ban fracking—something more symbolic than consequential, given that no one had actually proposed fracking in Mora County. Still, grant the local citizens the desire. The Community Environmental Legal Defense Fund took that desire and made it the deliberately doomed vehicle for a grand gesture against the legal status of corporations as affirmed by that bête noire of the left, the Supreme Court’s 2010 Citizens United decision. And then the Community Environmental Legal Defense Fund took its own anticorporate gesture, seasoned it with pseudo-nature mysticism about the rights of rivers, and arrived at a constitutional argument about local nullification and rights of secession—an argument seldom heard since the South’s pre-Civil War defense of slavery.
It was awfully close to sedition then, and it is awfully close to sedition still. “With this decision, the Court affirms what our communities already know, that the existing structure of law denies local, democratic self-governance,” Linzey announced the day after Judge Browning’s decision. “The existing structure of law denies communities the authority to protect themselves from fracking. The existing structure of law denies communities the authority to protect their water and the natural environment.”
The existing structure, you see, but not necessarily the lasting one. In October 1862, J.E.B. Stuart’s Confederate cavalry raided Mercersburg, Pennsylvania, seizing horses, food, ammunition, and black freemen to carry off into slavery. And if anyone had asked Stuart by what right his rebel troops did so, he would probably have answered with many of the same arguments that the Mercersburg lawyer Thomas Linzey now uses to denounce the Supreme Court and the rule of law. The same arguments that Linzey sold to a New Mexico county that only wanted to jump on the bandwagon of local governments’ feel-good legislation to ban fracking.
Joseph Bottum is a contributing editor to The Weekly Standard.
