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.”