Tuesday, April 29, 2014

No Fences in the Valley

“If you dare to struggle, you dare to win. If you dare not struggle then damn it, you don't deserve to win.” --Fred Hampton, August 1969, People's Church, Chicago

It's the one-year anniversary of the enactment of the anti-fracking ban in Mora County, and despite two pending lawsuits the Ordinance is still the law of the land. In Mora, oil and gas corporations, by strength of local law, are not allowed to plunder Mora's earth and spoil its increasingly precious waters.

But as David Correia writes in Properties of Violence, Law and Land Grant Struggle in Northern New Mexico, “law is a site of social struggle where claims over property are constructed and contested...while the law can be said to mediate conflicts, it can also produce the conditions for those conflicts.” It's those very conditions that the Ordinance redresses, blowing away “law” that undemocratically privileges corporate rights over individual rights.

It's been an eventful twelve months. Here's a quick recap of events to date:

April 29, 2013, Mora County Commission enacts the “Mora County Community Water Rights and Local Self-Government” Ordinance, the first countywide ban of fracking in the nation. (For an excellent summary of events leading up to the enactment of the ordinance please see http://lajicarita.wordpress.com/2013/05/07/mora-county-takes-a-stand/)

November 15, 2013, Mora County is sued in federal District Court by the trade group Independent Petroleum Producers of New Mexico, landowner Mary L. Vermillion, the JAY Land Ltd. Co., and Yates Ranch Property. The suit claims violation of their rights under the First, Fifth and Fourteenth Amendments to the U.S. Constitution.

November 26, 2013, Mora County Commission votes unanimously to defend its Ordinance, which bans oil and gas extraction and other hydrocarbons within Mora County. The Commission also voted to hire Community Environmental Legal Defense Fund (CELDF), the New Mexico Environmental Law Center, and Santa Fe attorney Dan Brannen, a CELDF associate, to defend the Ordinance.

January 10, 2014, SWEPI LP, a U.S. subsidiary of Royal Dutch Shell PLC, files a federal lawsuit against Mora County, claiming the Ordinance violates state law and the U.S. Constitution's equal protection and commerce clauses, amounts to taking property without compensation, conflicts with U.S. Supreme Court rulings that gave legal rights to corporations, and violates other state and federal laws.

January 27, 2014, Mora County Commission is served with the SWEPI lawsuit.

February 14, 2014, the Commissioners again vote unanimously to defend the Ordinance.

March 6, 2014, Mora Land Grant and Jacobo Pacheco, Individual Intervenor, file a Motion to Intervene and a Memorandum in Support thereof, in the SWEPI suit. The Mora Land Grant has 66 individual members, descendants of the original families who received the land grant in 1835, when the area was part of Mexico. The land grant was patented by the U.S. Congress in 1876 and is a political subdivision of the state of New Mexico, managed by a board of trustees. It is represented pro bono in these matters by Jeffrey Haas.

April 8, 2014, Mora County Commission passes a resolution not to oppose the Intervention and retains Jeffrey Haas pro bono as defense counsel in the Vermillion lawsuit.

Current Moment, The Mora Land Grant, or as it is known more lyrically in Spanish, La Merced de Santa Getrudis de lo de Mora, is awaiting the ruling of the New Mexico federal District Court on its Motion to Intervene.

While here in Santa Fe local media noted the event of the Land Grant joining the Mora County Commission in its fight against big oil and gas, I sought from the affected parties a fuller explanation of the significance of the Motion to Intervene.

“This political moment may never come again, and the Mora Land Grant was not willing to sit back and take a wait and see attitude,” Jacobo Pacheco, a member of the Land Grant and Individual Intervenor, told me. “We here in Mora have historically defended and protected our land. We were one of the last bastions of resistance to the invading U.S. Cavalry during the Mexican-American War. Moreover, our people have even formed citizen posses (Las Gorras Blancas) who patrolled our land cutting fences that the land thieves had erected.”

Mr. Pacheco is clear-sighted about the traps inherent to a regulatory approach. “The state regulatory authorities do not have enough manpower or a budget sufficiently robust to engage in any meaningful regulation,” he explained. “In such an environment, rules can easily be circumvented with a bit of ingenuity. Moreover, since the petroleum companies managed to exempt themselves from the Energy Policy Act of 2005, there exist no bona fide federal regulations.” He likens allowing frackers into the county to tolerating rattlesnakes in the garden. “Some activities are inherently dangerous, they can inflict irreparable harm, and should be prohibited, not regulated.”

When it came time to lawyer-up, the Mora Land Grant secured a seasoned veteran of major civil rights legal battles. “We have a strong interest in this fight and wanted to jump in. Jeffrey Haas was on a list of lawyers who'd volunteered to help in the struggle,” Mr. Pacheco explained. “We reviewed his tremendous and impressive record of civil rights advocacy, and we reached out.” Haas is one of the founding members of Chicago's People's Law Office and represented members of the Black Panther Party.

 The book has been optioned for a movie!

Haas, who is a father of four, is deeply concerned about “the habitability of the planet for the next generation or two.” Concern over future climate crises and wars over scarce resources impelled him to offer his legal services “to support the people who are standing up.” The work involved is considerable. The day before we met, Haas, a 71 year-old Santa Fean, had driven the two hours back and forth to Mora to attend a six-hour meeting, one of several such long hauls.

Pro bono means that Mr. Haas will not be receiving any compensation for his legal services, but can recover costs for copying, travel and expert witnesses. To that end Mr. Pacheco has created a website where supporters can learn more about the dangers and harms caused by fracturing, and where they can donate funds to help defray expenses. “As a practical matter,” Pachecho explained, “this litigation could go on for 2, 3, 4, 5, 6, 7 years, and we have to be prepared.”

According to Haas, the Land Grant is a political entity that can sue and be sued and its move to intervene is both symbolic and substantive. “It shows a broad base of support by and for Mora by people with a history in Mora who don't want drilling. It heightens public awareness generally, by drawing attention to the uneven playing field. And it's another avenue to express the voices of the people who want to shore up the defenders of the Ordinance, some of whom may be feeling the pressure.”

And the stakes are enormous. In the first case--the Vermillion case--the plaintiff's do not seek damages but do seek attorney's fees, “which could be a lot,” according to Haas. “But the judge would have a lot of discretion there. In the second case (the SWEPI lawsuit) damages are sought, but the irony is that if they were to win they will have incurred no damages.” But if Mora were to lose, any fees would be mere insults to the more perilous injuries to its ecosystem. “In Mora, hunting and fishing is a way of life, and water is absolutely critical,” Haas explained.

Quoting from the Memorandum of Support to the Motion to Intervene, the Land Grant seeks to be a party to the legal fight because:

“Mora County is a municipal corporation. Mora County residents possess rights

under the Ordinance which are distinct from the powers of Mora County. The Ordinance

does not secure Mora County’s rights. It secures the rights of Mora County residents and

Mora County communities. As the very purpose of the Ordinance is to enumerate and

secure their rights, the interests of Pacheco and the individual members of the Mora Land

Grant are clearly at stake.”

Rio Mora

The Land Grant hopes to.make challenges with respect to the legitimacy of land ownership and how sub-surface rights were passed on. It also hopes to show how damaging fracking would be to the quality and quantity of water in Mora County, and how land values would be adversely impacted by diminished and polluted water supplies. As Haas explained it to me, “As the runoff from the mountains is depleted due to drought or climate change, the sub-surface water becomes even more critical for survival.”

Haas hopes there will be a complementary relationship between the CELDF legal team and his own. “CELDF has been instrumental in drafting and supporting the ordinance nationally, and we offer a local component defending local communities.” There are two lawyers, one in California and another in Washington State, who are assisting Haas with legal research, while he keeps them apprised of political developments. Together they come up with new arguments, new theories, some of them reaching back to the Declaration of Independence.

A grotesque irony of the Pleadings is that corporations are now using the Civil Rights Act to assert that due process and equal protection must be extended to them on account of their corporate personhood. In the Answers, the Mora Land Grant will deny the allegations, demand proof of them, and move to dismiss the suit. “It's exciting, challenging and daunting,” Haas confessed. “Fred Hampton's example helps me keep going, keep pushing. I think, what would he say or do? I try to live up to that. There's a legacy I feel I have to uphold.”

A revolutionary legacy?

“Yes, in many ways. Not grab a gun and shoot something, but a deep feeling that the system must dramatically change-- the power has to go to the people. We can't separate social justice from environmental justice. Often climate disasters affect the poorest countries and people the most.”

Gilbert Quintana, Vice President of the Mora Land Grant, told me that while he lives on the same land where his great-grandparents resided, the 826,000 acres of commonly held land that comprised the land grant are dispersed among private owners. “People sold us out. There was thievery, chicanery, people were bamboozled. The fact is ours is a landless land grant.”

This history of dispossession by hook or by crook is common in northern New Mexico. Mr. Quintana is well aware of the legacy of struggle recounted in the Correia book—Alianza, The Courthouse Raid, all of the vigorous protests by the Chicano communities during the sixties and 1970's when they realized the extent of the ripoffs. And while that history both contextualizes the current struggle and offers inspiration, for Quintana the strong sense of resistance to “kings and queens, masters, or now, corporations” is even more personal than that. “The grandparents would tell us of the time when there were no fences in the valley.”

Mr. Quintana, who describes the current battle as “lopsided” between a poor rural county and the “biggest corporation in the world,” believes that like Biblical David, Mora will be victorious against its Goliath. “Often the strength of Power is exaggerated, while the Underdog's is underestimated. Our limitations force us to be more creative.”

His vision for the county is as a “food sovereign” area where the people produce food in pristine conditions--“good air, water and land.” To the frackers he would say, “We'll sell you food when you need it, and we'll buy your gas. We're not hypocrites, we'll share what we have, but we don't want your drills here. In this, we are governed by our belief in the land and in our roles as protectors of the land.”

Happy Anniversary, Mora--let's celebrate, let's dance!

Friday, April 11, 2014

Graft, A Daydream

NM DOC Secretary Gregg Mercantel, a man of dual allegiances.

We already know thanks to NM State Senator Linda Lopez's solitary exertions during his confirmation process, that NM Department of Corrections Secretary Gregg Mercantel is prone to lies of omission. Notwithstanding his failure to report “several incidents,”and given the 38-1 vote approving his nomination, it seems reasonable to surmise that partial truth-telling is part of the position's requisite skill-set in the nation's most corrupt state.

What is the evidence that New Mexico is the most corrupt state? The fact that it is fiftieth in child well-being. These pillagers unabashedly scrape the gruel right out of the children's bowls, so what do you think happens to their prisoners? The abuses are documented, but never answered and never ever corrected.

While I was sitting in yesterday's absolutely vomitous Legislative Finance Committee hearing on the 4+ million dollar “shortfall” in Corrections' budget--and as a strategically staged sidebar, the expansion of the privately operated for-profit women's prison--I let my mind wander, and had the most fantastical daydream.

In the fantastical daydream Secretary Mercantel and I had left the foul air of Room 307 where legislators act their part in an endless and pointless kabuki asking all the wrong questions designed to distract from anything real that might be going on (e.g. modern day slave-catching for fun and profit). And where the dutiful press at best hints of wrongdoing, but mostly takes dictation and lives on to collect another paycheck.

Instead we strolled the lovely lanes outside the Roundhouse among the blossom-filled trees while conversating, and here's the really fantastical part--we were both wearing togas! If you'd been a bird in the bower, these are the words you might have heard amidst the laughter (mine) and the Secretary's gleeful giggles.

Me: I can't help noticing, Gregg, that you're wearing some kind of elaborate bandage on your foot.

Secretary Mercantel: Yep Frances, that's to protect my Achilles heel. You're very observant, most people wouldn't have caught that.

Me: I have a sense for people's vulnerabilities. Did you kill Mary Han?

Secretary Mercantel: No, why do you ask?

Me: You were a homicide cop, right? Who knows better how to get away with murder than a homicide cop? Silly intuition, never mind. Here's what I really meant to ask, more of a policy rather than tactical question—why do we have for-profit prisons?

Secretary Mercantel: We have found over the years that the outsourcing model has consistently created better graft-taking opportunities for us. There are certain inefficiencies in the public system in that regard—periodic audits, citizen watchdog groups, and other roadblocks. If I had my druthers we'd still have a public system, but this is what I've inherited.

Me: How does it work?

Secretary Mercantel: The graft-taking? Many ways, but the main one is the fines.

Me: The fines! I thought there was something fishy about those big fines DOC slapped on the private prison profiteers. Wait don't tell me, now that you've given me that helpful hint let me see if I can imagine the scenario.

Secretary Mercantel: (Lighting a spliff) Go ahead, Franny. Knock yourself out.

In this part of the fantastical daydream I time traveled a few hours ahead to the hot tub at El Gancho where I had a bubbly tête-à-tête with a well-heeled and rather prominent business consultant who acted as a sounding board as I pieced it all together. (Some of this biz lingo is his.) The fines: establish the fine in the first year as $1.8 million. In functional terms the fine is equivalent to the amount of graft that the corporations can bear and yet remain profitable. In year two, the fines are reported to go way down, showing progress and a good working relationship. But what the public doesn't know is that the corporations still pay the agreed upon shakedown number of $1.8, but this time less to the State and more to the graftees, and so on in each subsequent year. The governor doesn't even have to be in on it. Every so often, after deliberately causing overcrowding, it becomes necessary to add prisoner beds to the enterprise to keep the scheme growing and thriving. That's the moment we are now in.

I said as much to the Secretary who by now was completely stoned.

Secretary Mercantel: You got all that from being in the room with me for an hour and a half? Was it something I said?

FM: Yes. It was when you let your guard down, and I saw a furtive smile come over your face. You said that because of the fines, or rather because of the "clarity in the contractual arrangements," you and the operators were getting closer.

Secretary Mercantel: I actually said that out loud?!

FM: Yes. Everyone there heard you. But it wasn't just what you said, it was the manner in which you said it. Like you had a delicious secret. And you do, don't you?

Secretary Mercantel: God bless ya, Franny. (Passing the joint my way) Guilty as charged.

Sunday, April 6, 2014

TOUGHER Sentencing

It was that emphatic "TOUGHER sentencing" that propelled me downtown this morning. I wanted to ask the folks involved about that, because my impression was that sentences were already plenty harsh.

I bracketed my wariness of corporate-sponsored social justice activism...

     ...replete with swag.

In recompense I got to hear and speak with some serious and inspiring New Mexicans.

Pamela Michaels is a self-described "dedicated partner" with the New Mexico Children, Youth & Families Department (CYFD). According to Michaels, her adopted daughter Elery was shaken, beaten and starved. "Her survival was unlikely, in fact she flat lined twice. Hers was the worst case of Non-Accidental Trauma the doctors had ever witnessed, she was not expected to live," Pamela shared with us, warning she "might get emotional" during her talk.

I didn't write down every word of Pamela and the other fine speakers, but this is what stayed with me.

 "At four months she weighed only 8 pounds. It was months before she felt safe enough to cry, before she could relax in our arms. Only five, she's had multiple major surgeries. She doesn't see like the rest of us, the shaking changed the focal points. If you shake a child for just seven seconds it has the same effects as if they'd been thrown out a window from thirty feet up. She has no voice, so we speak for her. She's been concussed, she has impaired mobility on her left side. She cannot sign, but she's one of the best communicators I know; she's a lucky survivor who continues to make progress. She's getting ready for another major neurosurgery. She's 100% permanently disabled, but she's a loving child with a vast desire to be more than her challenges. She should be out running and jumping and playing, but she's stuck in a chair, fed by a tube, locked in a body that doesn't do what it's supposed to."

Michaels told the crowd in the Plaza that she hopes "for more and better training, for an environment that supports child welfare workers, that pays them wages equal to the heavy responsibility they bear. I want to talk to the governor about that," she said pointing toward the Roundhouse. "I want to tell her, No more Elerys!"

District Judge Mary Marlowe Sommer expressed her hope that the event would lead to more community awareness and participation. She urged the crowd to become Big Brothers and Big Sisters or volunteer in one of the tutoring programs, "to see the neglect in front of us." She said she hoped the business community could issue vouchers for poor kids "that they could use to buy food."

NM's CYFD Secretary tells the crowd: "Our families are not contagious, and they're not dangerous, at least not to others."

Cabinet Secretary Yolanda Berumen-Deines is a former social worker who believes that child well-being begins at home. "We want healthy families who can provide a safe home for the children in their care. But some families are broken, and we need to lend a big helping hand. They need healing, and futures!

"I hope you will all work hard to put CYFD out of business. Government can only do so much. Do you really want us in your business that much anyway?

"If you're in the grocery store and you see a parent struggling, go over to them, pat them on the back, remind them that parenting is the toughest job there is. Ask them, is there anything I can do to help? If they react defensively, don't take it personally, it's because they're so stressed, so overwhelmed."

Maria Jose Rodrigueq Cadiz, Executive Director of Solace thanked the crowd and told us, "You have a lot of heart. And it takes a lot of heart to respond to the children's acts of courage. Because it is an act of courage--when a child tells you what happened."

I asked Judge Sommer about the "TOUGHER sentencing" advertised in the event posters. She wasn't sure what that could be referencing. "I think the courts are already tough on child abuse. Reunification is always the goal," she informed me. "It's to that end that treatment plans are developed, and parents are given many opportunities along the way. They receive therapy, get help with their addictions. It's always a good day when the child gets returned. Punishments are meted out on a case-by-case basis. I've been tough when it's called for."

I asked her if she was seeing more women or men involved in abuse. "Both," she explained, "and it's often alcohol related, or heroin."

She was not aware that the Department of Corrections had issued an RFP to increase the women's prison in Grants from 611 to 850 beds. I asked her if she thought the urging for "TOUGHER sentencing" could be related to the proposed expansion. "You mean to fill the beds? No such thing! Judges don't think that way, we don't make that connection with the DOC."

I asked her how the judges would come to come to grips with the new CYFD protocols just issued by the governor. She explained there would be informal discussions among the judges. Judge Sommer invited me to come to criminal court, get educated, see what and how it happens. "We have no say where a criminal once convicted gets placed, that's totally up to the DOC."

When I asked Pamela Williams about "TOUGHER sentencing" she explained that often times in order to get people to participate in investigations, CYFD offers them "use immunity." In such cases, Williams instructed me, they can tell CYFD what happened and get immunity from prosecution. "In that sense they can get away with it, like Elery's parents; or sometimes they can plea bargain down to a much lighter sentence."

"But," she further explained, "I was trained as a forensic psychologist and worked in the prison system. I can tell you the prisoners are not taught any skills in prison, other than to become better criminals."

I asked her what she might say to anyone out there considering becoming a foster or adoptive parent.

"Do it!" she exclaimed cradling a foster baby in her arms. "It is by far the best thing I have ever done--the chance to change one child's life and the lives of everyone that child comes in contact with. There's very little else I can think of that is more profound. This little one, she represents hope for her family even though they know they'll never get her back. But this is her chance to break the cycle."

It was news to Suzanne Farley, a director of Court Appointed Special Advocates (CASA) that the event posters were calling for "TOUGHER sentences." "These things are done by committee, I wasn't aware that the event was being promoted that way. We are advocates for children in all circumstances. Often parents are drug addicted, so we ask how to help? I am certainly not in favor of tougher sentences, that's not our priority. We work to promote safe, loving permanent home environments. The research is clear, children fare better with biological parents whenever possible."

I asked her about the governor's remedies for CYFD. "She did the obvious thing, the conferring with law enforcement piece, sure. Her measures are a good first start. But my main concern is that she hire competent staff and support them so they don't burn out and turn over. The biggest danger is low staffing. I admire all of them at CYFD, all of their efforts on behalf of the children. But they're in a system that's a tough place to do the quality work needed."

She too was unaware of the DOC's intention to expand the beds in the women's prison in Grants by 39%.  

Maria Jose thanked me for coming and for writing about the event "to honor those who were here, to show their hearts." Of everyone I spoke with she was the only one who thought "TOUGHER sentencing" was appropriate.

Some members of the Santa Fe Police Department who escorted the march from the Roundhouse, enjoying hot chocolate and a moment of comraderie
As she explained it: "In New Mexico we're advocating for that. So often abusers get just a slap on the hand. We need new legislative tools to fit the crimes. I think the governor is coming to a place where she's ready for that."

Tomorrow Maria Jose travels to her country of origin--Spain-- where an innovative advertising campaign using a lenticular lens was rolled out last year.