How The Frackers Are Weighting Ballot Initiatives For Their Side In Colorado

New, giant wall being erected in a Denver neighborhood to reduce fracking noise complaints. Neighbors had described it as "like a jet engine running all night long".

It is no surprise to most of us here in Colorado that unless multiple issues are soon resolved, including extent of local control of fracking operations, as well as protecting scarce water supply in a drought-prone state, we will soon see conflict that will make the water wars described on Showtime's 'Years of Living Dangerously' look like a walk in the park. Already, many of the state's farmers are enraged as water rights are determined by auction, with the greatest volume going to the highest bidders - namely the oil and gas companies behind fracking.

Here in Colorado Springs, fortunately, the frack rage hasn't taken off like it has in Denver or in Weld County.....yet. The past three companies who've tried drilling exploratory wells in El Paso County have come away disappointed with the meager results, according to the article 'Frack down!' in The Colorado Springs Independent.  Despite that the gas frackers haven't given up just yet. A fourth company, Agave Oil and Gas, is reportedly planning to drill two exploratory wells here. The oil and gas frackers obviously believe that since they already have 55,000 wells in most of the rest of this dry state (recall each well takes 3-5 million gallons of water to frack) there's got to be some oil or natural gas here. Most of the citizens of the county are hoping they're wrong because they don't want to see a scenic part of the state despoiled by frack wells and pollutants.

Also, we don't want to have to buy bottled water by the ton every month because our water is so polluted you risk liver, stomach, pancreatic, kidney  and other cancers.

Many communities, such as Longmont and Boulder,  have tried their best to fight back by voting via referenda to ban fracking or limit it  - but the state (in the pockets of the frackers) has retaliated - claiming only the state "has the right to set certain restrictions".  The state perhaps needs to be reminded that states have NO rights.  States have prerogatives, not rights, because states exist as governmental entities not as persons-individuals. Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999) puts it bluntly (p. 108):

The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.

So the state hasn't a "right " to stand on, to re-use an old cliché. Colorado communities seeking to assert some kind of autonomy also have to deal with the Neoliberal Dem puppet , Governor John Hickenlooper - a pet of the oil and gas companies. Hickenlooper, seeing threats to his control coming up in the November mid-terms, is in a last minute push to broker deals that can prevent some overly local control initiatives from appearing on ballots.  One way to do this is to frame pro-industry ballots to run along side those of local control and hope voters are too stupid to read them carefully and note the difference.

The COS Indy article points to four total ballot initiatives currently in the signature -gathering phase here in El Paso County, of which three are largely pro-fracking. Can you spot them?

1) Initiative 121 says that local governments that ban or prohibit oil and gas development will not be able to receive state tax revenues from development elsewhere. (Well, so what? They can go to marijuana sales!)

2) Initiative 122 says that local laws cannot conflict with, or be more restrictive than, the rules of the Colorado Oil and Gas Conservation Commission (the puppet of Hickenlooper and the fracker fiends) and state laws and guidelines.

3) Initiative 123 says much the same but stipulates that local governments can assess an "oil and gas impact fee to mitigate the direct costs associated with oil and gas development and operations within their jurisdictional boundaries". (Fine, but what about the costs of treating the cancers from drinking fracked water?)

4) Initiative 75 is titled "Right to Local Self- Government"  and never refers to "oil" or "gas" instead stating that local governments have the right (actually prerogative) to "enact laws to protect health, safety and welfare by establishing the fundamental rights of individuals".

The last is on the right track, acknowledging only citizens have rights and that these trump the prerogatives of states. It scares the bejeezus out of Neolib puppets likc Hick because it gives local governments the power to enact local laws "establishing, defining, altering or eliminating the rights, powers and duties of corporations".

Also according to the initiative local laws "shall not be subject to pre-emption by international, federal or state laws."

A REAL Democrat and thorn in the side of the anti-citizen lobby in Colorado, is Jared Polis. He represents Boulder and has averred he will fund all campaigns for initiatives giving local control. In other words, he is Hickenlooper's worst nightmare.

According to a University of Denver law professor (Tom Russell)  cited in the Indy article, the last initiative as well as Polis' efforts are "unconstitutional". He claims such initiatives violate the U.S. Constitution's  "Surpemacy clause" under the 14th amendment.

In case some may need a point of reference, he's actually referring to the misbegotten 1886 Santa Clara decision of the Supreme Court, to award corporations the same rights as citizens, and extend to them special definitions as "persons" under the 14th Amendment.  The specifically relevant section of the amendment is that which is known as "The Equal Protection Clause" and which requires each state to provide equal protection under the law to all people within its jurisdiction. Where he dredges up "supremacy" is anyone's guess, unless he means corporate supremacy!

The error those like Russell - and the Santa Clara court- make, is conflating corporations with persons, hence they don't really have equal protection under the law as flesh and blood citizens. And btw, the 1886 court decision - which arrived AFTER the 1868 amendment, is NOT constitutional.

According to Russell (ibid.) the local control of fracking initiatives are:

"Unconstitutional on their face and express a version of rights inconsistent with the United States since at least 1776."

Which, of course, is nonsense - since in fact it returns to people the rights that are invested in citizens (as Prof. Gary Wills notes - see above).  It also repeals pseudo-rights, as "persons" that the corporations never merited!

The final bit of illumination from Russell:

"You can't just declare that a local unit of government can determine what everyone else's rights are"

Hmmmmm.....seems the good prof never heard of "community standards", i.e. in controlling the distribution and access to pornography in assorted U.S. locales. Thus if you ship XXX stuff to a place in Tennessee - and it violates its community standards-  you can be prosecuted by that community. Also, if you perchance bring your stash of porno to that same lil TN burg, believing the rights you have to use it in CA are the same there, you will be surprised! That goes for any "sex toys" as well, which are also outlawed in VA, TX and several other states. Seems the prof may need a bit of remedial law exposure!

Why Cliven Bundy And His Far Right Defenders Are Totally Wrong

"As long as millionaire Cliven Bundy gets to graze his cattle on public land for free, in contempt of three court orders and in violation of the law, this is not over.

Bundy and the suckers he brought in from the militia movement think they’ve won a huge victory against federal “tyranny,” and will only be more aggressive about breaking the law in the future." -   Thom Hartmann on smirkingchimp.com


The problem with the secessionist - Confederate South and the Far Right in general, is they fail to identify with  the right causes when they manifest and too often back the wrong ones. (Flash to the Confederate States of America demanding secession and the "right" to exist as an independent nation.)  Or flash a bit backward to the aftermath of the 2012 re-election of Obama when millions actually signed petitions online to secede from the United States.

Now, the far Right's minions, including "militias" who've traveled from as far as Florida,  are working themselves into a froth over one Nevada rancher named Cliven Bundy (any relative of Ted Bundy?) who they claim has been shafted by the federal government. As usual,  facts and truth are the first casualties of hysteria, and it's no different in this case.

First let's get a few of the facts out there:

- Bundy does not recognize federal authority over land where his ancestors first settled in the 1880s, which he claims belongs to the state of Nevada.

- . The Bureau of Land Management (BLM)  disagreed and took him to federal court, which first ruled in favor of the BLM in 1998.

- After years of attempts at a negotiated settlement over the $1.2 million Bundy owes in fees failed, federal land agents began seizing hundreds of his cattle illegally grazing on public land last week.

- After footage of a BLM agent using a stun gun on Bundy's adult son went viral in far-right circles, hundreds of armed militia supporters from neighboring states flocked to Bundy's ranch to defend him from the BLM agents enforcing the court order.

- The states'-rights groups, in echoes of Ruby Ridge and Waco, came armed and prepared for violence. "I'm ready to pull the trigger if fired upon," one of the anti-government activists told Reuters.

- Not eager to spill blood over cattle, the BLM backed down Sunday and started returning the livestock it had confiscated. The agency says it won't drop the matter and will "continue to work to resolve the matter administratively and judicially."

Now, let's start clearing up the muddied landscape.

First, there is no such thing as "states' rights".   (Which anyone who's taken a proper U.S. Government course in H.S. would know).   States have prerogatives, not rights, because states exist as governmental entities not as persons-individuals. Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999) further reinforces this point in his chapter ‘Constitutional Myths’(p. 108). He notes that citizens alone possess rights, which neither the states nor the federal government share. Both the latter retain powers and prerogatives, but not rights. Hence, the subtext is that rights can only accrue to human individuals.  As he puts it (ibid.)

“The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”

One of the things made by contract in this case inheres in Article 1, Section 2 of the Nevada Constitution:

All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States.

 

The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.

The paramount-allegiance clause, a product of the era in which Nevada gained statehood, originated in Nevada's first (and unofficial) constitutional convention of 1863. Some 3,000 miles to the east, the Civil War raged between the federal government in the North and West and the rebellion that had swallowed the South.

The preceding citation and excerpt is critical because it bears directly on rancher Bundy's claims. This is something all right wing, anti-fed supporters of his would do well to process.

According to Bundy, "I believe this is a sovereign state of Nevada." However, Bundy said in a radio interview last Thursday. "I abide by all of Nevada state laws. But I don’t recognize the United States government as even existing." 

The problem is that this position directly contradicts the contractual document I already cited from Article 1, Section 2 of the Nevada Constitution - which most certainly DOES recognize the United States government as existing and even having hegemony to the extent that:

The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority


So right wingers need to re-read that very carefully before getting their panties in a twist.

This means Bundy is also off the wall as when he told Sean Hannity in an interview last week (emphasis added): 

"Well, you know, my cattle is only one issue—that the United States courts has ordered that the government can seize my cattle. But what they have done is seized Nevada statehood, Nevada law, Clark County public land, access to the land, and have seized access to all of the other rights of Clark County people that like to go hunting and fishing. " 

In fact, the feds did no such thing! The embrace and recognition of the federal government's powers and state prerogatives in reference to it was already enshrined in the state constitution. READ IT AGAIN!  

Secondly, it is clear that what Cliven Bundy is really all about is secession. He doesn't even want to be regulated by the state (as per its federal gov't references) so basically wants it to secede from the Union. I guess he also wants it to shelve its Article 1, Section 2  and re-do its constitution. Not bloody likely!

Getting back to the actual legal issue, Bundy's claim that the land belongs to Nevada or Clark County didn't hold up in court, nor did his claim of inheriting an ancestral right to use the land that pre-empts the BLM's role. "We definitely don't recognize [the BLM director's] jurisdiction or authority, his arresting power or policing power in any way," Bundy told his supporters, according to The Guardian.


But again, this contradicts Article 1, Section 2  of the Nevada constitution that he professes to hold so dear.  The state constitution's framers, who were overwhelmingly Unionist, retained the clause in solidarity with the Union when they gathered in July 1864.The U.S. Supreme Court later ruled in Texas v. White in 1869 that secession had been unconstitutional and that "the Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states."

Now, if the people speciously standing with Cliven Bundy really want to get on the right side of a cause, as opposed to merely being wrong and strong, they'd do better to stand with the besieged ranchers of Pinon Canyon, in Colorado. They now face another land grab by the U.S. Army for not only training exercises, but drone testing! At stake is nearly 235,000 acres of land they currently call their own. See e.g.
http://www.military.com/daily-news/2014/04/01/ranchers-remain-wary-of-armys-pinon-canyon-plans.html

and
http://brane-space.blogspot.com/2012/08/army-to-ranchers-we-need-yer-land-or.html

In other words, if you're going to pick a fight with the feds, do it for the right reasons  (and in the right places!) not the wrong ones. Standing with Cliven Bundy in Nevada is the wrong cause and the wrong place. Lining up with the Pinon Canyon ranchers in Colorado is the right cause and in the right place. Think before you become all hysterical at who's right and who's wrong - oh, and it also helps to read the relevant state constitution!

See also:

http://www.smirkingchimp.com/thread/thom-hartmann/55416/nevada-ranch-stand-off-was-one-big-promo-for-rustic-right-wing-millionaires