Approaching Omega Point in Swepi v. Mora County

For many of us following this case there's a growing inclination that Swepi's dog won't hunt!

U.S. Judge James O. Browning, usually an alpha dog in his own courtroom, rolled over and showed his belly in Friday's hearing in Swepi v. Mora County. Unable or unwilling to continue to perform Swepi's heavy lifting, he sent Plaintiff's attorney back to Santa Fe, tail between his legs with a whole lot of explaining to do to his colleagues and client about how he lost not only the day, but the momentum.

As we reach the winter solstice, the “Mora County Community Water Rights and Local Self-Government Ordinance”is still the law of the land in Mora County. In fact, the darkest days in defense of the historic ordinance may be behind Mora. Thanks to Browning's ruling to allow the Intervenors (Mora Land Grant and Jacobo Pacheco) to take Discovery, Mora is now empowered to have its requests for information answered by Swepi. And though it is not always true that knowledge equals power, in this case, it could. The game completely changes if Mora can show that Swepi  has no imminent or realistic plans to drill their leased properties, and therefore no Standing to bring the suit. For Mora County and Mother Earth, it was a good day in court.

By contrast, the news that Swepi's General Counsel is soon going to have to fire up the photocopier and fork over proprietary documents to the Mora legal team, could not have been even the slightest bit welcome at Royal Dutch Shell headquarters. That very day the oil giant was busy buying up 165,000 of its own shares for cancellation, propping up its share price in a petro-world gone awry. In an environment of fallen and falling oil prices, these are strange days for big oil and gas, and maybe even strange enough to persuade Swepi to drop its ill-conceived suit. As Judge Browning said yesterday: "A lot can happen in five weeks."

Judge Browning should know. He hails from Leveland, Texas, where fracking wells pop up at an alarming rate of frequency! Once Oil & Gas are in, there's no stopping them. Hence Mora's desire for an outright ban.

The sequence of events on Friday went something like this: First, Browning denied Swepi's Motion to Stay Discovery. It was an old motion that had been kicking around since the days Judge Scott was presiding over the case, prior to the suit being reassigned to Browning. Browning's Opinion consists of 40 pages of various iterations of no can do (with one of the sexiest footnotes citing the case of Pres. Clinton v. Paula Jones on a technical point about scheduling). 

Second, he granted both motions filed by Mora County (the Defendants) and the Mora Land Grant and Jacobo Pacheco (the Intervenors), allowing them to take Discovery. Following his own logic, he had little choice but to do exactly that. Having allowed the Intervenors in the case, however reluctantly, Browning felt he couldn't now not allow them to fully participate in the Discovery process. Jeff Haas, who represents both Mora County and the Intervenors on a pro bono basis, said it best: allowing the Intervenors in the suit but preventing them from taking Discovery would be a Phyrric victory. Browning had to admit that indeed "it wouldn't be fair." 

Swepi's White Collar Crime Expert. Attorney John C. Anderson was 0 for 3 on Friday. 

Swepi attorney John C. Anderson, who is Of Counsel at Holland & Hart in Santa Fe, whined and whimpered a little, saying repeatedly that Haas was trying to do an "end run" around the court. He claimed the Defendants had already had a chance to take Discovery and had not done so "consciously and strategically." But the Mora attorneys provided a satisfactory explanation as to why they hadn't, and Judge Browning, looking down at Anderson from his lofty bench, asked: "Don't the Intervenors have you over a barrel?" 

The bottom line is that oil prices have fallen to less than $57 a barrel.

Whipped on this point, Anderson urged the judge to at least limit the scope of Discovery, reminding him that he had the authority to impose restrictions. This seemed to appeal to Browning who asked Anderson for more specifics: "What would I do? I have the power, but how do I use it? How would I write it?" Clearly vamping, Anderson answered vaguely that he was sympathetic to "the analytical difficulty in fashioning appropriate Discovery..." But in the moment it mattered, he seemed totally unprepared to provide much to Browning in the way of practical guidance.

Specifically, Anderson urged the judge 1) not to allow duplicative requests from the Defendants and the Intervenors. Well, this point had already been agreed to. Furthermore, if a duplicative request somehow did manage to slip through, all Swepi would have to do is make reference to the previous request, and move on; 2) to limit the number of documents that Mora can request (though presumably Browning would have to justify his reasoning for such a limitation, which could be more trouble than it's worth as it's not in Mora's interest to overwhelm itself with extraneous records); and 3) (and here he repeated himself) to use his powers to restrict the scope of the requests. Again, easier said than done in a case that has garnered international attention. 

Anderson insisted that Mora was going on a "fishing expedition," hoping to get lucky. He seemed almost adolescently miffed at Browning for not finding a means of preventing Discovery from going forward.

They tussled politely over the elements of proving Standing. Browning revealed that he was already 20 pages into writing about the Standing issue alone, and certain things still remained unclear, like for instance the profitability issue. He didn't explicitly say so but if extraction isn't profitable, who's going to believe that a for-profit corporation with a fiduciary duty to its shareholders would go ahead and frack in certain knowledge that big money would be lost? In such a scenario Royal Dutch Shell would likely be vulnerable to criticism, perhaps even legal action by its own shareholders. 

Overtly, as well as at the level of subtext, Browning seemed to be urging Anderson to be reasonable, to appreciate how difficult it would be for him to write a credible opinion "on this poor record." And it's true. Given that Swepi would lose money if it tried to frack now, and everyone knows it, how can Browning possibly craft an opinion in Swepi's favor that wouldn't be received as ludicrous, even farcical? Mr. Anderson, Throw the old dog from Leveland a bone! 

As oil prices fall, the road seems to be rising to meet Mora County's plight to protect its water, land and inhabitants from the well-documented ravages of fracking. And while no one explicitly  brought up New York State's recent fracking ban, it perfumed the air of Judge Browning's courtroom. Is Browning supposed to ignore the fact that the Empire State has effectively declared fracking a health hazard and banned it statewide? Do New Mexicans have some inborn immunity to those same hazards? Of course not. Arguably Browning now has to be even more scrupulous as to the fairness and transparency of his process. His actions, especially in the face of these contingencies, are subject to intense scrutiny, and he can safely assume that his every error in judgement will be magnified, exponentially.

"See my problem?" Browning said to Anderson at one point. But Anderson didn't see it, or pretended not to, and insisted that Swepi already had unimpeachable Standing for each of its claims simply by virtue of having mineral rights in Mora. Browning, however, was unconvinced that the other factors weren't relevant to the discussion. Anderson seemed annoyed at having to inform the judge that the issue of Standing does not rise or fall with the price of gas and oil, and further that the price of oil has no effect on Swepi's "Takings claim." 

But Anderson's assertion extended to its logical conclusion is frankly absurd. He seems to be suggesting that Mora County could somehow be construed to be harming Swepi by enforcing the Ordinance and preventing Swepi from inflicting financial self-harm upon itself.

Anderson is further suggesting that because Swepi is the possessor of some leases in Mora, Mora is not entitled to substantiate for itself that Swepi is ready, willing and able to extract the oil and gas that may or may not exist at those leased properties. Rather, they must take Swepi's word for it, even as Swepi pretends to insist that it will proceed at all costs, even at a financial loss.

For a Fordham Law graduate and experienced white collar litigator,  John C. Anderson has managed to back himself into quite an idiotic corner.

We understand that big oil and gas wishes the Ordinance would disappear from the law books, that they experience it as an affront to corporate hegemony over community rights, and want it gone. But the Ordinance has been alive long enough to have etched itself on our consciousness, to show us another world of possibility, and that can't be undone. As DeLillo writes in Point Omega:

"Consciousness accumulates. It begins to reflect upon itself. Something about this feels almost mathematical to me. There's almost some law of mathematics or physics that we haven't quite hit upon, where the mind transcends all direction inward. The omega point," he said. "Whatever the intended meaning of the term, if it has a meaning, if it's not a case of language that's struggling toward some idea outside our experience."

"What idea?"

"What idea. Paroxysm. Either a sublime transformation of mind and soul or some worldly convulsion. We want it to happen."

"You think we want it to happen."

"We want it to happen. Some paroxysm."

 He liked this word. We let it hang there.

Team Mora Kicks Judge Browning's Bootie (In His Own Goddamned Courtroom)

On December 5, 2014, in what can only be described as a 92-page hissy fit, U.S. Judge James O. Browning, who we must never forget was appointed by torturer-in-chief George W. Bush, let his freak show for all the world to see.

I am referring to Judge Browning's Order GRANTING the motion of the Mora Land Grant and Jacobo Pacheco, as Intervenors in Swepi v. Mora County. This is the suit that Swepi, a subsidiary of Royal Dutch Shell, has brought against Mora County to try to overturn its historic anti-fracking ordinance. With every fiber of his being, hizzoner wanted to deny the motion and send the Intervenors packing, but he was hamstrung by...wait for it...the law! From page 2 of the Order:

The Court disagrees with the relevant Tenth Circuit environmental case law, but it is bound to follow and apply the law fully and faithfully. If the Court were not required to grant the Motion under rule 24(a), however, it would not permit intervention...

Most of the other 90 pages drive that point home every which way. His clerks must have been burning the midnight oil faithfully writing their exhaustive critique of the Tenth Circuit's decision that forced Browning's hand Mother Nature's way. The experience of reading Browning's Memorandum Opinion and Order is like being cornered by a too-close-talking drunk at a bar who thinks he is witty (but mostly just smells like salami and weird socks) while he rants at you about his endless tedious feuds with people you don't know. And all that while you're still waiting for your first drink!

But on and along page 80 of the Order appeared a passage on creativity and the law so anomalous that it begged for scrutiny. Browning writes:

Moreover, with the Tenth Circuit’s lenient rules in finding a protectable interest, any
private party, with a creative enough attorney, can intervene in a case in which the government is a party.

Creativity, in the judge's parlance, is not a good thing--egads, it leads to partycrashing!

Judge Browning continues:

One intervenor may have an interest in hunting in a flat grassy region of the county and another in a mountainous wooded area.One intervenor may have an interest in fishing in lakes and ponds, and another in fishing in streams and creeks.

Here Judge Browning's examples belong to the realm of topography. I turn to philosopher Levi Bryant who makes a distinction between topographical maps and vector maps in Onto-Cartography, An Ontology of Machines and Media (Edinburgh University Press, 2014). According to Bryant, a topographical map is a "sort of snapshot of worlds or assemblages at a particular point in time." But vector maps "chart the trajectories along which worlds are unfolding."

This is our fundamental conflict, Judge Browning's and mine. He's judging from the position of Mora's present unspoiled landscape without a thought to the trajectory that will unfold as a result if Swepi were to somehow prevail. He continues:

One intervenor may have an interest in studying specific foliage, and other intervenors have interests in studying other foliage.

"Specific" and "other" are his descriptors for foliage. There's an almost autistic dispassion at the thought of leaves.

Leveland, Texas where Judge Browning was raised. Not a leaf in sight!

 He has no terms to differentiate one from another, even for purposes of illustration.

No wonder creativity is so threatening, a theme he returns to in this next passage:

One intervenor photographs the forests and the landscapes; another paints. With a creative enough attorney, an intervenor -- or dozens of intervenors -- can think of specific enough interests that a case may impair, and, once the interest prongs are satisfied, the intervenors automatically satisfy rule 24(a)(2), because, according to the Tenth Circuit, a government entity is incapable of adequately protecting these private interests in spite of the common objectives.

Now I understand that the Tenth Circuit is as dirty as they come. Be that as it may, I just want to say thank you to them that they were able to face that last bit of reality: a government entity is incapable of adequately protecting these private interests... 

Having the Intervenors join the Mora County Commission in its defense against Swepi has already strengthened the case to protect the Ordinance. The Intervenors are pursuing Discovery with all due diligence and on Monday, December 8th, they filed a first set of Discovery requests, which could lead who knows where...? Judge Browning will be hard put to dismiss these requests, 36 in all. He'd have to torture the law to make them disappear.

In Earth, Maps and Practices, the final chapter of Onto-Cartography, Bryant adds a third type of map--modal maps:

Modal maps map futures that could exist if we were to intervene...the environmental activist might note that the world is unfolding along a particular vector that will, in the future, lead to the extinction of thousands of organisms, world hunger because of changes in agricultural conditions, more destructive weather events, and tremendous economic and political instability as people fight over resources. A modal map would consist of acting on the topography of the present to produce a possible future that would avoid this fate.

I would like to remind Judge Browning of the oath he swore on August 1, 2003 during the Bush torture era when he received commission.  “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”

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 23^rd, 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.

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."

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

Sublet on Former Helmuth Naumer Compound, Jan 1 to March 31, 2015

If I weren't fortunate enough to be traveling to an even more extravagantly beautiful place in South America this winter, I don't think I could tear myself way from my rustically charming rented casita and studio only eight miles from the Santa Fe Plaza. But I am headed to Banos, Ecuador to volunteer with La Bib at Arte del Mundo, and am subletting my place which is comfortably, if somewhat funkily, furnished, for a three-month term.

It's actually two spaces-- a 750 sq. ft. casita and a 500 sq. ft. studio space in a freestanding building a few dozen steps down a curving path. Both are part of a compound which was the former residence of painter Helmuth Naumer, whose murals are part of the Bandolier National Monument. Every single time I enter my writing studio/living room, I pinch myself that Naumer's work once hung on these walls. Works like these:

The current residents of the compound, my landlords and two other renters, are very caring people and wonderful neighbors. It's a very sweet vibe out here, probably because we all have our share of the beauty of the place, and so I'm hoping to find just the right sublettor(s) who will meld into the landscape seamlessly and appreciate the luxury of silence, sun-dappled days, star-drenched night skies, and falling asleep to the comforting yet primal crackle of cedar, juniper and pinyon fires in the bedside kiva.

Living in the adobe casita is like being a kid at sleep-away camp, it's so relaxed and carefree.

Tranquility, privacy and views over the arroyo are all available from the casita's portal.

When you enter, there's a deep coat closet on your right and the eating nook on the left.

Here's a longer view and you can see the gas heater on the wall.

It's even prettier by candlelight and moonlight.

From the entrance, you step up into the kitchen.

The water is from my landlords' well and it tastes delicious. And it's a gas stove and oven, which I always prefer.

Here's a few more views of the fun-to-be-in kitchen.

I just bought the antique Cuisineart at a yard sale. It's so ancient, it doesn't have an on/off button, but when I plugged it in, it worked!

The fridge is a month old, and the skylight lets the light pour down on the happy cooks.

The bathroom is through the bedroom next to another sizable closet (both will be emptied out completely). There's a gas heater in it, which I turn on to warm the space up before showering and dressing. It doesn't take long to make it toasty in there.

The sleeping space is a dramatic and large room which you enter by stooping under an arched doorway. The room has stone floors, high ceilings made of traditional vigas, and large windows looking out on an overgrown courtyard replete with stone fountain and peach tree. The wildness is its own kind of freedom.

It's just an incredibly comfortable and felicitous bed. An electric blanket warms up the sheets perfectly. And here's what you see from a position of repose.

Just to the right, there's a second door to the outside and a wall-mounted electric heater.. You'll want a good pair of slippers to pad around on the stone floor, but you'll be snug enough.

Down a path is the aforementioned studio/living room.

Natural light permeates the room, there are multiple windows on three sides.

It has a wood-burning stove and gas heater for warmth, and its own portal and views for gorgeousness.

What else, what else? There's uncovered parking for three vehicles. A land line for local calls. Cable, wifi and utilities are included. You can rent it all per month for what a slightly fancier casita in town would cost per week. I'd appreciate receiving all three months up front, and my very lovely landlords have requested final say on the sub-lettor(s).

Finally, it's a very healing place. Bird feeders, wind chimes and gurgling fountains dot the compound. It's also a very inspiring place in its wildness and savage beauty--you will hear the coyotes! The surrounding roads are lovely and perfectly safe for solitary walks or romantic rambles, and there's a high quality restaurant serving breakfast and lunch not a ten-minute stroll away.

If you think you might enjoy spending a happy 3-month idyll in a laid-back, no-stress environment, please be in touch with me at francesmadeson@gmail.com Looking forward to sharing my little piece of heaven with you.