[CRNMC] GX and CELDF response to Legal opinion of Initiative

Tue Aug 12 18:05:06 PDT 2014

Date:August 12, 2014
To: The CRNMC
From: Shannon Biggs, Global Exchange, and Thomas Linzey, Esq., CELDF
RE: Response to legal opinion from Mendocino County Counsel re: Bill of Rights Fracking ban ordinance (Measure S)

The opinion offered by Douglas Losak, acting county counsel (opinion 14-0016) is typical and expected.  As we outlined in Democracy School and in Shannon’s trainings, the job of the (unelected) county counsel is to advise the elected officials about the potentiality of legal actions against the county based on existing law—whether that law is just or not. Mr. Losak is not your lawyer. He is the lawyer for the municipal corporation that is Mendocino County, not the people of the County. 

Mr. Losak is correct about one thing – the law is not currently on your side. Over the past century, both corporations and state government have restricted the authority of municipal corporations so that the people of the municipality have very few rights at all. Your right to govern your own county has been canceled out by the “rights” of corporations, and the authority of the State to preempt your lawmaking.

Measure S is about changing that. It is about changing the law by challenging the law. Openly, frontally, and directly. The current system of law does not allow you to say “no” to fracking within the County. You therefore have a choice – you can either accept that current status of the law, or you can work to change it. Measure S is about asserting your right – as residents of the County – to change how the municipal system operates.

Mr. Losak counsels about what the law “is”. Measure S is about challenging what the law “is” and adopting a new system of law which enables you to control what happens in the County.

Measure S would establish  a Community Bill of Rights for the people and natural environment of Mendocino County – new civil, political, and environmental rights. All built on the right of local, community self-government These includethe right to live in a healthy and safe ecosystem and the right to protect local water from danger. In order to uphold and protect those rights, the initiative bans all fracking related activities within the County including the transportation of fracking fluids, and the use of local water for fracking.  

Measure S elevates the rights of the people of Mendocino above the claimed “rights” of corporations and state agencies that enable fracking corporations to profit from the destruction of local ecosystems and to harm residents and communities. 
The response of the county counsel is the pushback of the system asserting that the decisions about Mendocino and the health of the ecosystems upon which all residents depend is not in your purview to decide.  The best response from the CRNMC is not to take a defensive posture on the point-by-point legal arguments presented by Mr. Losak, but to discuss how the current system of law operates to remove your authority to say “no” to projects that will harm people and nature in Mendocino County. And, to speak openly and plainly about how the purpose of Measure S is to change existing law so that people in Mendocino can stop not only fracking, but other projects in the County that threaten them.

In regards to the single subject rule, Measure S contains one subject – a Bill of Rights. The prohibitions on fracking activities enforce those rights; and the limitations on corporations and state government protect the enforcement of the Measure. The law only requires that the different parts of the Measure be germane, or reasonably connected, to each other. As an example, groups in two Oregon Counties have put forward Community Bills of Rights dealing with GMO’s which contain almost identical provisions to Measure S. Courts there have found that the bill of rights ordinances pass single subject review. As to the inclusion and legality of felony charges, that section was added because of local legal advice obtained by the CRN, and since it deals with enforcement, passes single subject review. 

Sent from my iPad please excuse typos and brevity

> On Aug 11, 2014, at 5:04 PM, "karinajoy" <karinacotler at gmail.com> wrote:
> 
> My husband says I was unclear, so sending this again... Please send any counter arguments to me - and to the entire list, if you wish, but please CC me, to make sure I open it.
> Thanks, everyone!
> K
> 
> 
> I've already forwarded this from the proponents to Shannon and Ben Price, asking for CELDF's counter arguments. I ask that y'all let the proponents deal with CELDF (so they are not inundated with the same request) and please do not write to CELDF directly.
> 
> Will keep everyone posted when we hear back. The proponents are also working on counter arguments - send us your thoughts on this subject. I will then compile all the info and send it back out to the whole list.
> Karina
> 
> 
> 
> 
>> On Aug 11, 2014, at 3:51 PM, Meg Courtney wrote:
>> 
>> All,
>> This was forwarded to me by Supervisor Dan Gjerde. You might want to read this from the county council as some or all if this may be on the ballot - and/or you'll need to have "talking points" to clarify when you talk to people. I believe Jim Tarbell already talked to the other proponents about this but he thinks CELDF should be aware too of the  "obvious flaws".
>> -Meg
>> 
>>> 
>>> >>> Douglas Losak 08/01/14 17:14 >>>
>>> 
>>> Dear Supervisors,
>>> 
>>> I was asked to write an opinion on the initiative that is the subject
>>> of the meeting on Tuesday.  The attached opinion is not an in depth
>>> analysis of all possible legal issues that could be raised.  Instead, it
>>> is a look at some of the obvious flaws with the proposed ordinance.
>>> 
>>> If you have any questions or would like to discuss this with me in more
>>> detail, please let me know.
>> <Fracking 8-1-14.pdf>
>> 
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