Rejected fracking ban may cost NM county ???hundreds of thousands??? in legal fees

MORA, N.M. ??? Mora County in northern New Mexico has no shortage of scenic beauty, but the area is largely rural and hardly wealthy.

But has learned Mora County taxpayers may be on the hook for up to hundreds of thousands of dollars in legal fees after a federal judge last week threw out a sweeping ordinance, which the Mora County Commission passed in 2013. It essentially eliminated oil and natural gas production in the area and banned hydraulic fracturing, declaring the ban unconstitutional.

???We have heard estimates ranging from tens of thousands to hundreds of thousands of dollars,??? Michael Aragon, an attorney for the county, said Tuesday. ???This is definitely an issue and a concern for the commission.???

When the plaintiffs who challenged the county ordinance filed the case, they called for Mora County to pick up all court costs, should the judge rule in their favor.

???It???s too bad that we might get stuck with attorney???s fees,??? said the commission???s newest member, George Trujillo. ???I don???t know if the county can afford it. I don???t think we can.???

The 2013 ordinance, written with considerable input from an environmental group based in Pennsylvania, was considered by legal observers the most restrictive in the entire country and prompted two lawsuits from oil and gas interests, as well as some mineral rights holders in Mora County.

The first lawsuit, initiated by Shell Western Exploration Production Inc., was heard in federal court in Albuquerque and, in a stinging and detailed 199-page ruling, U.S. District Court Judge James O. Browning ruled the ordinance conflicted with state law and violated the U.S. Constitution.

???A county cannot decide when federal preemptive law applies and when it does not,??? Browning wrote, ruling the ordinance violated the First and Fifth amendments as well as the supremacy clause, which establishes the precedence of federal law over state laws and constitutions.

Under the ban, ???The Constitution would be applied in a cookie-cutter fashion across the United States with such inconsistency from place-to-place that it would cease to be a Constitution of the United States at all,??? Browning wrote, invalidating the ordinance in its entirety.

A second lawsuit, called Vermillion v. Mora County, is scheduled before a federal magistrate. But after the Browning decision there???s speculation the commission may cut its losses and settle out of court.

Aragon told that Mora County commissioners and attorneys for all the sides involved in both lawsuits had a teleconference Monday during an executive session, but Aragon didn???t reveal many of the specifics discussed.

It was one of the first sessions Trujillo, the newest member of the three-person commission, attended. Trujillo was elected in June by a wide margin over John Olivas, the commissioner who spearheaded the ordinance against hydraulic fracturing ??? the process in which highly pressurized liquids break up underground rock formations to release oil and gas.

???I knew that was going to happen,??? Trujillo said of the judge???s ruling. ???I think a lot of people knew that.??? Trujillo referred all other questions to Aragon.

???The new county commission is taking this very seriously to what this means to the taxpayers and the community,??? Aragon said. ???They???re looking at this as an opportunity to move forward.???

The ordinance passed on a 2-1 vote in 2013; commissioner Paula Garcia was the lone dissenter. was unable to reach Garcia for comment. Last year, she told New Mexico Watchdog that while she didn???t like hydraulic fracturing, she worried whether the ordinance could stand up in court and whether taxpayers would be liable for legal costs if the county lost in court.

Olivas did not return two phone messages. He worked closely with the Community Environmental Legal Defense Fund, a conservation group based in Mercersburg, Pa., to write the wide-ranging ordinance.  

An email to CELDF executive director Thomas Linzey, asking for comment on the ruling and whether CELDF plans to contribute to the payment of the plaintiffs??? legal fees, went unreturned.

Speaking on Tuesday, attorney Aragon conceded the Mora County measure seemed to go too far.

???I think the prior county commissioners were well-intentioned,??? Aragon said. ???There was a sense this was a novel case. But in the end, some of the (ordinance???s) arguments flew in the face of 200 years of jurisprudence.??? 

In the meantime, taxpayers in Mora County ??? home to the second-highest unemployment rate in New Mexico ??? are left waiting to learn whether they???ll have to pay for the legal costs involved in defending the ordinance.

Aragon said the time frame for resolution could range ???from six months to a year.???

Click here to read the decision by Browning invalidating the fracking ban. The wording of the entire ordinance is included in the judge???s ruling.