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Las Vegas Optic: Activist sues county clerk - Latest chapter in oil and gas drilling controversy

by Martin SalazarLas Vegas Optic
January 31st, 2013

An attorney for a local activist who is fighting to keep oil and gas drilling out of San Miguel County has filed suit against County Clerk Melanie Rivera, arguing that her refusal to sign off on a home rule petition is a violation of state law.

Lee Einer submitted a proposed petition to the County Clerk's Office on Sept. 26 and asked her to sign off on the wording so that he could begin circulating it. The home rule petition seeks to force the county to appoint a charter commission to prepare a new charter for the county. Specifically, the petition requests a charter that recognizes a community bill of rights within San Miguel County, that bans the extraction of oil and
gas within the county and that elevates the Bill of Rights above rights claimed by corporations operating in the county.

The lawsuit is the latest chapter in the ongoing battle over whether to allow oil and gas drilling and fracking in San Miguel County. The County Commission has a moratorium in place on drilling while it tries to come up with an ordinance that addresses oil and gas drilling.

Commissioners have been told that the oil and gas industry is interested in the southeastern portion of the county, particularly the Trementina sub-basin of the Tucumcari basin.

Einer and others, meanwhile, have mounted a grass-roots campaign against oil and gas drilling here, packing meetings and asking county officials to protect the environment.

Home rule is important to Einer and others because it gives local governments greater latitude in what they can legally do. Otherwise, local governments only have authorities specifically delegated to them by the state Legislature.

At issue in the lawsuit is whether counties like San Miguel have the authority to pursue home rule.

The county's position is that under the state Constitution and state law, only one New Mexico county - Los Alamos, which is a joint city-county government - has been given authority to pursue home rule status. Einer contends that both the constitution and state law give counties the authority.

Einer's efforts are backed by the Community Environmental Legal Defense Fund, a non-profit, public interest law firm providing legal services to communities thought to be facing a threat to their environment.

Rivera, based on advice from County Attorney Jesus Lopez, has declined to act on Einer's petition, saying state law gives her no authority to do so.

Both sides exchanged multiple letters arguing their points in the ensuing months. When it became clear that the county wasn't going to reverse its position on the matter, Einer filed suit.

The lawsuit was filed Friday in state District Court in San Miguel County. It seeks a writ of mandamus, or court order, forcing Rivera to sign off on the petition, which Einer's attorney argues meets all legal requirements.

Lopez disagrees.

"What CELDF proposes is contrary to very basic notions about county government in New Mexico, and the limitations which have been placed on county powers since statehood," Lopez said. "The lawsuit challenges those fundamental and longstanding legal concepts, and is a case of first impression in New Mexico."

Besides asking a judge to force Rivera to approve the petition, Einer is asking that he be reimbursed for his costs in bringing the court action and that Rivera be fined up to $250. He is represented by Santa Fe attorney Daniel E. Brannen Jr.

Even if Einer prevails on the home rule issue, there's no guarantee that the community bill of rights he is pursuing will be approved.

The Las Vegas City Council passed a community rights ordinance last year that makes it unlawful for any corporation to engage in the extraction of oil, natural gas or other hydrocarbons within the city and its watersheds. Mayor Alfonso Ortiz, who doesn't have veto power, has refused to sign the controversial law, saying it's unconstitutional because it seeks to strip corporations of their rights. Activists have threatened to take Ortiz to court to force him to sign the ordinance, but to date they haven't done so.