Saturday, November 29, 2014

14,392 Reasons for Mora County to Stand Its Ground On the Anti-Fracking Ordinance

There's been an important update in the Swepi v. Mora County case currently being heard in federal court in Albuquerque, Judge James O. Browning presiding. And as much as one hates to be the bearer of somewhat alarming news, this information is far too important to deliver any way but straight up so the people of Mora County can decide what the frack they're going to do.

On Monday, November 23rd, Swepi, the subsidiary of Royal Dutch Shell currently suing Mora County to overturn its historic anti-fracking ordinance, filed with the Court a document entitled "Supplemental Evidence Regarding Justiciability." The filing had 10 exhibits attached, which list Swepi's oil and gas leases in Mora County, information that had not been previously provided, and it changes the picture significantly. It appears that Swepi has substantial leases in Mora!

According to Mora County's pro bono attorney, Jeffrey Haas, “The document was filed because Judge Browning was skeptical about whether Swepi had shown a sufficient interest in Mora County to prove standing to object to the constitutionality of the ordinance.” Haas is modest: he repeatedly reminded Judge Browning that the burden of proof was on Swepi to prove the validity of their interest in Mora, and by his persistence, one might even say, insistence, he drew this crucial information out from the other side. They fessed up to the extent of the territory currently at risk to be fracked, and it affects far more land than originally supposed. Haas has spent some time this Thanksgiving holiday week examining the leases, and this is what he's found.
The leases total 14,392.73 acres and cost a total of $205,292 although not all of this was paid for by Swepi. (Thank you to John and Diane Lindsey for plotting the leases on a map.) All but one are on state land.

The leases are in the North Central part of Mora County adjacent to Colfax County. Swepi has some leases in Colfax County close to their leases in Mora County. 
Swepi acquired the leases as follows:
1. On Sept. 16, 2008, 4 leases totaling 1403 acres were acquired by Daniel Gonzales of Santa Fe, at a state land sale (auction) and he then assigned his interest to Swepi on Oct. 1, 2008. Swepi got 5 and ten year leases for twenty-five cents an acre, to be doubled after 5 years if no oil or gas extracted. What Swepi paid Gonzales is not stated.
2. On Sept. 16, 2008, KHL, listed as a NM corporation, and who is involved in oil and gas extraction in many states, purchased 8 leases for 1961.33 acres for a price of $52,000 in a state land sale (auction) and promptly assigned its interest in the leases to Swepi on Oct. 1, 2008. It is not indicated what Swepi paid, but they have to pay twenty-five cents acre per year, which is doubled after 5 years if no oil or gas extracted. It is unclear to me when these leases expire, as the lessee can continue the lease for a total of 15 years or more under certain circumstances, such as the area is still producing or can be shown to be producing oil or gas.

3. On April 6, 2010, Swepi purchased a lease from the Jack C. Smith testamentary trust, filed 6/24/2010. Dollar amount and acreage not indicated.
4. On June 23, 2010, KHL purchased 6 leases totaling 1876.68 acres for $26,100 at a state land auction. They promptly assigned their interest to Swepi by July 1, 2010 when they were recorded.

5. On July 20, 2010, Swepi purchased 15 leases at a state land sale totaling 8511.72 acres, at a price of $59,400. Terms were roughly the same with annual rate increasing from twenty-five cents an acre to $1.00 an acre after ten years. Leases allow Swepi to extend up to 15 years or more if they can show the well is capable of producing oil or gas. The transaction was recorded on Aug. 1, 2010.

The ghost of Mora's future...?
 6. On July 20, 2010, Ben Donegan of Santa Fe purchased 640 acres at a public sale for $3200.00. On July 20, 2010 his interest was assigned from CEJA corporation to Swepi and recorded Aug. 1, 2010. It was not stated what Swepi paid.
Haas also received a letter on Wednesday, November 26th from the Swepi lawyers indicating they were not going to Answer Mora's discovery requests because their Answers were due after the date the magistrate had set to close discovery. Though they are going to Answer Mora's Motion to Extend Discovery until January 15, 2015, sometime in early December.

Friday, November 21, 2014

The Obscenity of Scott Greenwood and Tom Streicher: (Yet Another) Scandal in Alburquerque

"We're not starving, we're just hungry..."

Of all people in the United States these two characters from the Buckeye State, Scott Greenwood and Tom Streicher, somehow got themselves hired in Albuquerque at $350 per hour plus expenses. (Just look at them, it's ludicrous! If we're making a nasty porno, at least give us some eye candy!) Their billings, already in the six figures, were "earned" presiding over the cut and paste job that is the DOJ Consent Decree on unconstitutional policing by the APD (27 fatalities, many of them unarmed, just since 2010). 

But $350 an hour is apparently not sufficient remuneration for the duo and they got caught scraping the bottom of the commonweal's cookie jar, scratching for every last green chile flavored crumb. One can only imagine how mortified Council Members Ken Sanchez, Isaac Benton, Brad Winter, Diane Gibson, Trudy Jones and Don Harris, who voted in favor of the contract, must be for their lack of discernment. They have to be thinking, What other foxes have we naively let into the chicken coop even after being repeatedly warned during public comments by the people who saw through these two?!

And what kind of contract could CABQ possibly have approved wherein these kinds of pecuniary abuses are not immediate grounds for its dissolution? We don't have the final tally yet, but under New Mexico statutes: 30-16-1. Larceny.  D. "Whoever commits larceny when the value of the property stolen is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony." A defendant convicted of a fourth degree felony in New Mexico faces up to eighteen months in prison and a fine up to $5,000. Shall I call Corrections Secretary Marcantel and reserve a couple of luxury suites in the prison in Clovis just in case?

KRQE broke the story; not sure why.

By now it's dawning on everyone in the Land of Enchantment not enchanted into a stuporous coma that these DOJ Consent Decrees are fabulously enriching business opportunities for the "experts" who jimmy up some expertise. In this case Greenwood's past gig at the ACLU, cynically trading on its brand for personal gain, and Streicher's tenure as a police chief whose own department was the object of DOJ scrutiny for the killing of 15 Black men in five years, many of them unarmed. Yep, if I read this summary of his chiefdom right those are his qualifications--a pile of corpses and a record of resistance to departmental reform. 

If Albuquerque's lucky it'll get some of the money back after the audit, and if Greenwood and Streicher are lucky they'll somehow avoid being indicted by District Attorney Brandenburg for theft from the people of New Mexico. But in all likelihood the conditions that led to the too-tempting-to-resist spending spree will not be altered, and the people of Albuquerque will remain on their knees tithing heavily to the well-established Church of Endemic Corruption posing as the Chapel of Anomalous Malfeasance. 

A buckeye. 'Nuff said.

I wrote, just this morning, to Councilman Brad Winter to see if he would be demanding an apology for the rip-offs from the Buck Eye Boyz Gang, and to learn if he's planning on proposing setting reasonable expense guidelines for outside consultants. I'll happily publish his response when it arrives sometime after the end of the Anthropocene.

Another question I asked Winter was whether the mounting pile of evidence of bad stewardship of taxpayer resources is concerning to him vis a vis Albuquerque's bond ratings in the capital markets. But I might've saved the pixels. After speaking with a press officer in Moody's NYC office, Albuquerque has little to fear from the bond rating agencies. They're looking solely at factors that could have an impact on the city's ability to repay its debts in bond instruments over 20 to 30 years.  

Even money damages from wrongful death and injury lawsuits in the tens of millions are a mere rounding error in its $870 million annual budget. And while good governance is one of Moody's metrics, I was advised that they never give prescriptive advice. Poof went my fantasy of having our corporate overlords rein in a governmental body unable to hold itself accountable, even a teensy little bit. 

I also wrote to Mister (gotta spell it out for him) Scott Greenwood himself and offered space here for him and Streicher to say how very sorry they are. Not just for getting caught, but for flaunting their white male privilege and class entitlement in a decadent display of Gimme!

An uncanny resemblance to that ole Buckeye Scott Greenwood stuffing his face.

Additionally, in their self-selected role as the people's guardians of the DOJ Consent Decree process I also wrote to APD Forward, specifically to ACLU-NM Exec. Dir. Peter Simonson in his capacity as spokesman, to learn what its position on the expense scandal might be. I had hoped to find an excoriating statement on their website (it's been ten days since the scandal broke), and really don't know to what to attribute the group's silence on the matter.  It reflects so very poorly on them. With watchdogs like these...

Frankly, I don't expect to hear back from Mister Simonson because I may have pissed him off months ago in a little listserv contretemps when in so many words I expressed the concern that he himself may be lusting after one of these plummy consultant gigs in some other poor unsuspecting American city being held hostage by a militarized police force. All he had to do is say he wouldn't touch a gig like that with a 10-foot pole...but to everyone's disappointment, he didn't.

And if it's the case that he's upset with me for even suggesting that such a future lucrative possibility may be motivating and influencing his actions and inaction in the here and now, well...c'est la vie.

Unlike Moody's, Written Word, Spoken Word does offer prescriptive advice, even unsolicited!
Perhaps Ken Ellis, Steve Torres, Mike Gomez, or other of the family members of APD victims who are part of the organization and whose moral authority blankets APD Forward in a patina of conscience, might wish to secure a public statement from everyone on the legal team that they will not seek such lucrative consultancies using APD Forward as a launching pad. It would feel a lot cleaner.

This comes to mind because I'm sure I'm not the only reader who felt some measure of disdain for the tepid and obfuscating  APD Forward Analysis (for Dummies?) of the 106-page agreement. In its initial iteration anyway, the APD Forward legal team offered up bullet points and "Bottom Lines" that give little of the sense of what a crushing disappointment and betrayal of good faith this document is.

Bottom Line: Though they get kudos for slogging through the 106 pages of info dump in the document that now governs the APD reform process, APD Forward pulled a heckuva lot of punches in conveying the document's significance in maintaining the status quo in power relations.
 So different in tone and substance from La Jicarita's David Correia (one of the Burque 13) who concluded in his analysis:
"If there was one thing that no one believed, it was that APD could police itself. And yet, the idea that the solution to APD is APD is at the very heart of this Agreement. And DOJ’s faith in APD’s ability and willingness to police itself produces its share of absurdities.

Consider the section that actually “requires” that APD officers self-report their misconduct “to a supervisor or directly to the Internal Affairs Bureau.” Or the part of the Agreement that now requires that APD officers carry officer-misconduct complaint forms wherever they go. “Officer, once you’re done violating my constitutional rights, could you pass me one of those complaint forms in your pocket?” Or the section titled “Community and Problem-Oriented Policing” that actually includes the following sentence: “APD shall ensure that officers are familiar with the geographic areas they serve.” Or the fact that the Agreement leaves it up to APD to train its officers in “leadership, ethics and interpersonal skills.” I laughed out loud so often while reading this Agreement that my daughter, in the other room, thought I was watching a sitcom.
The women in the first row--Nora Anaya, Barbara Grothus and Kathy Brown--3 of the Burque 13, watching CABQ unanimously pass the Agreement negotiated by Streicher and Greenwood.The Burque 13 went to jail, incurred injuries, lost income, faced ridicule, and are still not out from under the legal wrangling with the City, while the Buckeye gang gobbles down $53 steak dinners on their dime. Mike Gomez, whose son Alan was shot in the back by by APD officer Sean Wallace (back row), is a portrait of parental anguish.
But the Agreement is no sitcom; it’s a horror show. In section after section, the DOJ identifies a problem and then charges the very agency responsible for creating that problem with coming up with a plan to fix it. The DOJ noted profound deficiencies in Internal Affairs investigations of officer-involved use of force. This Agreement “solves” that problem by requiring that APD “ensure that investigations of officer misconduct complaints shall be as thorough as necessary to reach reliable and complete findings.” The Agreement describes new requirements for crisis intervention training, requires new processes for officer misconduct investigation, and defines new oversight responsibilities for brass. but in every case—in every case—leaves it up to APD to achieve those goals. Each obligation or requirement in the Agreement is followed with a sentence that includes the language “APD shall develop and implement” or “APD shall revise and update its policies and procedures ” or “APD shall develop objective criteria for.” The only evidence that DOJ was involved in drafting this Agreement is the fact that much of it is plagiarized from other consent decrees. Otherwise, it reads as though drafted by APD itself.

We live in a city with a police department that routinely violates the constitutional rights of the people it’s charged to serve. It kills and brutalizes people at an alarming rate and with a frightening precision and it’s been doing it for decades. And, after this Agreement, there’s no end in sight."

Tuesday, November 11, 2014

SWEPI v. Mora County: The Purple Haze of U.S. Judge James Oren Browning

Will Judge Browning "kiss the sky" or permanently lodge his silver tongue up fracker-in-chief Dick Cheney's hemorrhoidal arsehole?

When asked about the lyrics to his song Purple Haze, Jimi Hendrix said that he was writing about a dream he'd had, a disorienting dream of walking... under... the... sea. If so, his subconscious mind psychoacoustically associated "deluge" with "delusion."

Purple Haze all in my brain,
lately things don't seem the same,
actin' funny but I don't know why
'scuse me while I kiss the sky.

Yeah, Purple Haze all in my eyes,
don't know if it's day or night,
you've got me blowing, blowing my mind
is it tomorrow or just the end of time?

When Hendrix composed the song in 1967, five years after the publication of Rachel Carson's Silent Spring, the nascent environmental movement was concerned then as now with the self-defeating delusion that living beings can coexist peaceably with mega-poisons being dumped on our lands and seeping into our aquifers. The early environmentalists cut their teeth on the victorious battle to ban DDT in the United States, an important win.

But before being banned, DDT was regularly sprayed along the Texas coastline where little Jimmy Browning frolicked as a lad. No doubt the stuff's in him still, wreaking its enduring havoc on his central nervous system, and sadly, judging by some of his bloopers at last week's hearing, very possibly, his intellect.
Judge James Oren Browning's umwelt was formed in this hideous but "normal" landscape in his hometown of Levelland, Texas.

Mora County before Judge Browning's imminent rulings. One wonders if he's constitutionally capable of valuing it?

Oral Arguments in SWEPI v. Mora County were held on November 3, 2014, in the U.S. Courthouse in Albuquerque, New Mexico, U.S. Judge James Oren Browning presiding. SWEPI, a subsidiary of Royal Dutch Shell is suing Mora County to overturn the Mora County Community Water Rights and Local Self-Governance Ordinance

The Ordinance dares to ban SWEPI from fracking Mora County into another version of Levelland. 

Fortunately for those of us who like their earthly landscapes to be hospitable to...uh... Life, Big Oil & Gas blew it, big time. Power, in its headlong rush to quash precisely this kind of orientation toward the law--law as a tool of empowerment for local peoples--way, way, way jumped the gun in filing the suit, as Jeffrey Haas, Mora County's pro bono attorney pointed out over and again. SWEPI, via its two hired New Mexican ringers, erratically slapped some but not all the needed documents together and left Browning, who was appointed by W in 2003, to clean up their sloppily parataxic mess. SWEPI assumed, correctly, that Judge Browning  would be so inclined, but they also assumed, probably incorrectly given his level of befuddlement, that he would be up to the task. 

But how? The judge also well knows that the matter of challenging Mora's anti-fracking ban is not ripe for adjudication--"Is this a manufactured suit?" was a consistent refrain as he thought some of the timing issues through aloud. All roads pointed him to that same question: "Manufactured suit?" Sadly, the record will show that he must've muttered it to himself half a dozen times. His performance in this regard was evocative of actor Bill Murray's zany character in What About Bob--"baby steps...manufactured steps."

Because of course the whole bloody suit is contrived, completely so. Even the Albuquerque Journal indicated as much in its perfunctory and curtailed coverage when it quoted one of the SWEPI attorneys baldfacedly admitting, "I agree there's nothing in the record...". I'd like to see the rest of reporter Scott Sandlin's story, both the parts that he knew would never make it in and didn't bother to write, and the column inches he did write but that were summarily chopped by more cautious editors. And as for the so-called alternative press, Kay Matthews of La Jicarita, who's been consistently and disgracefully shilling for Shell in her Mora coverage--regulation good, banning bad--didn't bother covering one of the most important New Mexico environmental law stories ever, because...? 

Mora makes the "ripeness" case in spades: fundamental factual disputes, burdens of proof unmet, validity of SWEPI's leases totally unsubstantiated. There's been no harm to SWEPI, there's no imminent harm to SWEPI, (how could there be? they haven't even requested drilling permits for these leases!) there's nothing yet to sue about. On the merits SWEPI can't get there from here, at least not without a big assist, or series of assists, from Judge Browning. Or as one legal commenter in the peanut gallery put it:
"One after another Brownings' decisions were ideologically driven. Particularly on the 'Standing issue,' it was really alarming that there was almost no discussion about imminent and concrete harm and that he asked so many questions implicating extra-record evidence. He also didn't respect the burden of proof for the jurisdictional issues. His seeming need for extra-record evidence alone demonstrates that discovery was appropriate and a decision on SWEPI's motion was premature!"
Damn straight! I've been around enough U.S. Courthouses to know that normally the court rules on a Judgment on the Pleadings on what has been filed--there's no permitting additional evidence. At least that doesn't happen in the usual course, but it sure as hell happened last Monday. SWEPI's attorneys magically pulled a spreadsheet supplementing the evidence of its claims in Mora County out of a hat, material that had not been included in the Pleadings, or otherwise provided to Mora's attorneys.

In the cheap seats our eyes were rolling in disbelief, but Browning was acting as if he accepted that SWEPI's leases were valid although there's not a shred of evidence of that. It is absolutely SWEPI's burden to prove, and we can only surmise that if they could've, they would've. It was galling to see Browning let them sneakily add to the record with vague statements like "oh yes, they intended to drill" or "they have millions of dollars of leases in Mora County." Millions? How about a verifiable number? And how is it permissible that the amount of value of the leases now claimed orally is 100 times what they had offered proof of in their Complaining?!

One analysis, and it seems unavoidable, is that Browning was well aware that legally SWEPI had fallen short of meeting its burden, and he was asking questions to get them to provide new little bits of evidence which might sufficiently satisfy their burden to allow a ruling in their favor to be upheld by an Appeals Court. He asked so many questions implicating extra-record evidence.

So yeah, we suffered the indignity of watching Browning blatantly prompting them, coaxing the "right answers" out of them. It didn't matter how many times Haas objected, Judge Browning was by turns placating--"Maybe I can fix that later"--or condescending: "You're just throwing everything at the wall and hoping something will stick!" I kept waiting for a referee to blow a shrill whistle and call Foul! But then I realized, the only one who could call foul in this scenario was committing the foul, and so we sat there powerlessly watching Browning engage with SWEPI in some super-creative improvisational collaborative record-creation. "Mountains!" I asked the Sandia peaks visible from my seat in the very last row, "can you believe this travesty purporting to be justice?" The mountains blushed in witness to the shame of it all.

Similarly, Browning's stated inclination to rule that the Mora Land Grant and Jacobo Pacheco, a Mora citizen, could not intervene was a slap in the face of the people in attendance, and a shitty thing to do all around. It would have been an easy enough nod to Mora's dignity, if the good judge were so inclined to care about such matters. Was he trying to humiliate Jacobo, and make an example of him as one who shouldn't have even bothered trying to fight back?

He can insult us all he wants in his courtroom, but if Browning's opinion ignores the 10th Circuit law on this issue, law that is liberal (in the sense of generous) in allowing citizen and environmental groups to intervene in cases where a government entity such as Mora County is defending the suit, he'll get his professional comeuppance. We'll just have to wait and see if he's that much off his gourd.

Even more bizarre, when one of the Mora attorneys explained that there were competing corporate rights and community rights to be evaluated in the case (the essence of judging), he dismissed his duty to weigh them by saying corporate rights have been given precedent for 150 years.  With an attitude like that why should communities with their second-class citizen's rights ever hope for equality inside a U.S. Courtroom? 

At that point my compassion kicked in and I wondered if the judge, though only my age, might perhaps be dealing with some cognitive issues: unfortunately for Judge Browning, DDT has been linked to early-onset Alzheimer's. Criminy, how many times did he insist that the mayor of New York City was still Michael Bloomberg? Three terms weren't enough of that despotic billionaire? Surely he's aware that Bill de Blasio was inaugurated last January, more than ten months ago? And then there was that absolutely lunatic moment when he flat out said: "I keep hearing voices," and called in court security to make sure he didn't hear any anymore. And it honestly wasn't clear if he was referring to the few murmurs of reaction in the courtroom, or a more personal paracusia.

No one who attended will ever forget Haas' plea, if not for justice then at least, for decency.
"Judge, it is ironic that the oil company is suing claiming its constitutional rights are violated based on the Civil Rights Act of 1871. This Act, known as the Klu Klux Klan Act, was passed to protect persons (recently freed slaves) from acts of states and cities and their police forces denying them basic constitutional rights. We had just fought a war to establish that people were not property. Now the Courts are declaring that property is people."
I couldn't tell if that statement affected Browning as it did many of us in the gallery, or if it even reached the part of the man who might still care about the quality and consequences of his own judgemanship. But the thought occurred to me--that Judge Browning, sitting up there on his pharoahic throne in his plummy purple haze, like little Jimmy Browning sucking up the DDT fumes on the beaches of Corpus Christi, might not actually know the difference.

I guess I'll wait until after I read Judge Browning's opinion on SWEPI v. Mora County, which I very much hope will be contra to his stated inclinations on the issues, before I fill this out. Judge Browning, without hyperbole, holds the fate of far too much that is not his and never can be in his own human hands. Perhaps a thorough neurological examination is in order before he takes pen to paper, or recuses himself due to medical unfitness. Environmental hazards do take their toll, even on the 1% who live in a purple haze of invulnerability.


you hardly wait for a chink
to open where something to say
might issue, and not more blue
smoke. the heart is a small
red pyramid, totally relaxed
you put your finger on a map of
the Balearic Islands, orange
as ironwood & what a strange day
comes out of you like bluets
it doesn’t matter what you say
the ruins stand in a green shade
tall, taller than Odysseus
serving up his baseless dish
and around the yellow taxicabs
go, exhausted with the age
they are smashing your mind
purple, a Phoenician sea