February 2014

Op-Ed: New Mexico Has a Democracy Problem


Harry Montoya


As one of the Santa Fe County Commissioners who voted in 2008 to adopt an ordinance regulating oil and gas extraction within the county, I’ve followed similar efforts of other communities across the country. Last year, following in the footsteps of about two dozen towns and cities (including Pittsburgh, Pa.), the Mora County Commissioners proceeded to adopt a local law banning oil and gas drilling as a violation of the civil rights of Mora residents, which included their right to water. Understanding that our current system of law views the “rights” of extraction corporations as more important than those of our communities and elected officials, the Mora Commissioners then used their local law to raise Mora’s right to local self-government above those “rights” claimed by extraction corporations.


Mora’s actions were a response to a shocking reality—that New Mexico isn’t really governed by us anymore but by a relatively small handful of individuals who run some of the largest corporations. Those corporations, over the last century or so, have not only successfully created a system of law which allows them to use government to preempt us, but one that also recognizes “corporate rights” that can be used to legally override our local lawmaking. Thus, when our communities decide that they must stop projects that endanger our health and safety, we find that we have been rendered powerless to do so.


In Santa Fe County in 2006, when we began to explore options for controlling oil and gas extraction, our lawyers informed us that we couldn’t ban drilling—even though that’s what I believe a majority of people in the county actually wanted. The lawyers told us that if we did try to ban drilling outright, we could be sued by oil and gas corporations for violating their constitutional “rights” and for “interfering” with state authority over oil and gas operations. Like most elected officials who run into that system of law, we decided to try to live within that law. Thus, we adopted an ordinance that regulates how drilling for oil and gas can be done within the county. As a regulatory ordinance, it automatically allows the drilling to occur—it just makes it more expensive to do so. When natural gas or oil prices rise to the point where it’s cost-effective to comply with the requirements of our ordinance (or to bear the cost of suing to overturn parts of it), Santa Fe County will be drilled.


If I had the choice again, as a county commissioner, I would choose to go in a different direction—the one that Mora County has gone. Unlike us, they recognized that we have to make a choice—that we can either accept the system of law as it has been given to us, or we can begin to build a new system of law that forces those corporations to respect local laws which protect the health, safety and welfare of our communities.


Mora County was recently sued by corporate interests seeking to overturn their Community Bill of Rights’ ban on oil and gas extraction. In that lawsuit, a corporate few seek to vindicate their “rights” over the rights of the Mora community. It is my hope—given how clear the Mora County situation has become—that people across New Mexico will begin to realize that we don’t have a fracking problem—we have a democracy problem.


The situation in Mora County (and endless ones prior to it, dealing with a variety of issues important to New Mexicans) points out the necessity of constitutional change in New Mexico—changes that recognize a right to local self-government that cannot be overturned by corporations using preemptive state government or their own corporate “rights.” Win or lose, the Mora County Commissioners deserve our thanks for beginning that long-overdue conversation about whose rights must, in the end, prevail—community majorities or corporate minorities.


Article 2 of the New Mexico Constitution already recognizes that “all political power is vested in and derived from the people.” Led by Mora County (and the city of Las Vegas, NM, which adopted a similar law), it’s time to make that declaration real. It’s time for a democratic, grassroots revolt in which our communities openly—and unapologetically—reject these corporate legal doctrines, which have been manufactured to keep us under their thumb. It’s time to disobey that system of law and use that disobedience to drive a new system of state and federal law that actually protects our communities.


Gracias/kudos to Mora County for leading the way.



Harry Montoya served two terms as Santa Fe County Commissioner (2002-2010), served on the Pojoaque School Board and has been a candidate for NM Public Lands Commissioner and US Congress. He represented New Mexico on the National Association of Counties Board of Directors and the National School Boards Association.



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