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...baby steps...manufactured suit...baby 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.

Mined

By Jonathan Skinner

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