Colonization is not a foreign concept in Mora County, New Mexico. First it was the Spaniards, in 1598, then Mexico in 1821 and finally, after the Battle of Mora in 1847, the United States laid claim. Now the fossil fuel industry wants a turn. But Mora’s people won’t have it.
Last spring Mora became the first county in the United States to strip the legal personhood of corporations involved in hydrocarbon extraction. Citizens spent years replacing every member of Mora’s county commission in an effort to protect the county’s water and environment, and finally, in April 2013, the commission passed the “Mora County Community Water Rights and Local Self-Government Ordinance.” It not only outlaws corporate extraction of oil, gas and other hydrocarbons, but also introduces the right to water, the right to water for agriculture, the right to a sustainable energy future, the rights of natural communities, the rights of la Querencia de La Tierra—local indigenous people’s conception of homeland—and the right to local self-governance. Most subversively: these rights are elevated above corporate “rights,” should they ever conflict. The county has now been challenged.
In two federal court cases that are the first of their kind, hydrofracking hopefuls are suing Mora for passing the ordinance. The plaintiffs in the first case are three landowners hoping to lease their property to oil and gas corporations for hydrofracking exploration, along with a trade association representing corporations hoping to frack on private lands. The second case involves a subsidiary of Royal Dutch Shell that wants to frack on public, state-owned lands it is leasing for twenty-five cents an acre. In both cases the plaintiffs denounce the county’s authority and claim their Fourteenth Amendment rights are being violated. Banning fracking, they plead, is tantamount to seizing property without due process.
The community’s support for the ordinance has deep roots. Much of the land proposed for fracking in Mora, a place where 80 percent of residents are Hispanic or Latino, once belonged to a group of families who were granted common grazing and timber land by Mexico in 1835. Through a series of cases from 1891 to 1904, however, much of the land was privatized or transferred to state or federal ownership. The heirs of these families have filed as interveners in the Shell subsidiary case. Claiming authority under the Treaty of Guadalupe Hidalgo, which settled the Mexican-American War and honored the land grant, the heirs have filed as “beneficiaries of the rights established and recognized by the Ordinance.”
“It is our feeling that we also have rights, we have community rights, to govern how we live our lives here,” says Jacobo Pacheco, an heir of the Mora Land Grant. “Particularly because our basic resources are going to be affected.”
But the law is not on their side. Corporations’ “rights” are protected from government—including county—intrusion. If you ask Mora County Chairman John Olivas, that’s the point. “For well over a century now, corporations have used [their] ‘rights’ to stop efforts, like ours, which seek to use local lawmaking to protect our communities from harmful corporate activities,” Olivas wrote in a recent public letter defending the ordinance. The ordinance removes privileges corporations have enjoyed as far back as 1819—like constitutional Contracts and Commerce clause protections and Fifth and Fourteenth amendment rights. And by claiming authority to govern extraction, Mora also confronts legal structures that define US counties, and localities more generally, as only possessing the powers state legislatures grant them. New York City, for example, has the authority to raise taxes and regulate rent because the state says it can. This means the powers that localities are given can be taken back, as seen in Michigan’s suspension of Detroit’s city government. It’s no surprise fracking companies are suing. “We expected this,” Olivas tells me.