Monday, March 06, 2017

Community rights: still waiting for its day in court

[This is an editoral I submitted March 6, 2017 to local newspapers in time for the Lafayette City Council vote on a Climate Bill of Rights ordinance on the following day.]

With the conservative front pressing its agenda across the country, Broomfield's city council hesitating to pass their own fracking moratorium and prevent imminent drilling in its residential neighborhoods, and Colorado's AG suing Boulder Country over its moratorium on fracking, it is high time that the nascent community rights movement raise its head and tell the Colorado judiciary: we are still waiting for our day in court.

I am going to tell a story here, a story about how the oil and gas trade representation group, the Colorado Oil and Gas Association, sought, and succeeded, in stopping a potent legal threat to its ability to control Colorado government at all levels; about how justice was not served in a Boulder court, and how the public was fooled into thinking it was; and about some legal slight of hand was used to keep the status quo from changing, to deceive and coddle the public into thinking that all is well because stability in how the oil and gas industry is regulated has been preserved.  It is a tale that few know, but deserves a spotlight of attention in these dark times.

Our tale begins November 5, 2013, when the Lafayette Community Rights Act passed by over 60 per cent in my town, which gave rights to Nature, said that corporations are not people (in direct conflict with Citizens United, on purpose), and banned oil and gas extraction with the city limits. These bold actions were not based on simple declaration of intent, but on carefully defined community rights. This was explicitly the intent of the authors of the Act, which was East Boulder County United, a nonprofit that was formed with the intent to do something, using the legal strategy of community rights, which has been carefully developed by the Community Environmental Legal Defense Fund (CELDF) based on years of legal research. To find out more about them, see celdf.org.

The Act pointed out where in the Colorado Constitution how the creation of community rights should be allowed with regard to home rule communities. We had worked hard for over a year to make this happen: first, by defining the wording of the Act with CELDF's assistance, worked with the state and local offices for weeks to get the wording of the ballot measure approved, learned how to mount and implement a petition campaign, recruited dozens of volunteers to help, got the required number of signatures by the deadline, and then, lo and behold, got it on the ballot. Then we campaigned to publicize this fact, and educate the public on this important ballot measure. Then the long-awaited night came...and the crowd that I was with at the Nyland community house that night cheered at this stunning victory when the results of the vote were announced. We had no idea of whether this unprecedented act of legislation had a chance of succeeding, but it did so in decisive fashion. The people of Lafayette had spoken!

Our euphoria was short-lived. Within a month, the city of Lafayette was sued by the Colorado Oil and Gas Association (COGA), on the basis that state law, based on the Colorado Oil & Gas Act, preempts the town's citizens from regulating oil and gas development. However, if you examine this brief you will not find a single mention of community rights on which the Act was based. The definition of those community rights was carefully defined as based on constitutional rights as guaranteed by the Colorado and United States constitutions; but despite this careful construction of legal argument, the COGA brief fails to mention it. Could it be on purpose, by design, perhaps because...COGA's lawyers were afraid to mention this?

Then, about six months later, Colorado 20th Judicial District judge D. D. Mallard agreed with COGA's brief that state law preempted Lafayette from regulating oil and gas. Again, if you read the judge's decision, there is no mention of community rights. The judge simply repeated previous court cases about statutory state law, i.e. based on statutes passed by the Colorado legislature. But this is what district judges are supposed to do: decide on the merits of a plaintiff's brief -- which, in this case, omitted the most important part of the legislation.

And I would venture to guess that this was the intent of the COGA brief and its legal strategy, and this judge fell into the trap: to completely bypass the community rights section of the Lafayette Community Rights Act, which is based on constitutional rights and would supersede the statutory legal arguments.

There was an attempt to appeal this glaringly wrong decision; but not by the city attorney of Lafayette, David Williamson. No, it was private citizens, members of the non-profit East Boulder County United, who were familiar with the community rights nature of the case who attempted to appeal the decision. And in this appeal, the nature of the constitutional basis of this law was, again, carefully pointed out. Unfortunately, due to lack of resources to continue to fund the appeal, the organization was unable to continue the appeal, and were forced to withdraw in fall of 2014.

Then came the Colorado Supreme Court decision on May 2, 2016 that the attempts by Longmont and Fort Collins to ban fracking were illegal, and preempted by state law. Numerous news stories covered the important decision. These cities did appeal their cases, because their city councils and city attorneys were behind their appeals. Neither of those bans were based on constitutional rights, however, and so the decision by the court was hardly surprising.

And since Lafayette's council and city attorney chose not to appeal their COGA case, and private citizens had not the means to continue the appeal, the fundamental nature of the Lafayette Community Rights Act, based on constitutional rights, has never had its day in court. But should some day that happen, I would hope the Colorado Supreme Court justices do their duty and consider the entire Act, and give a measured and fully considered legal opinion of how our community's legal rights were defined, and give Lafayette's citizens their real day in court -- and have justice be truly served.






Wednesday, January 25, 2017

Reply to Paul Danish regarding civil disobedience in Lafayette



[An editorial by Paul Danish appeared in the January 19, 2017 issue of the Boulder Weekly, which can be found here. Because his editorial was so biased and one sided -- which still enjoying prominent placement in one of Boulder County's most widely read newspapers, I had to pose this response.]

Paul Danish, age 74, ex-Dem turned Republican, past Boulder Council member and candidate for County Commissioner, has penned an editorial that ridicules civil disobedience, minimizes the accomplishments of the Standing Rock protest, is apparently in favor of allowing fracking on Boulder Open Space, and seems to favor a bill currently before the North Dakota legislature that would legalize murder of oil and gas protestors by automobile if they get run over on a state highway. Charming.

Why the Boulder Weekly allows such an angry, biased, and inaccurate libertarian rant to be published is beyond me. I am only glad to see that they allowed a more balanced news story by Rob Jackson in the same issue about the Lafayette city council meeting where the Climate Bill of Rights was proposed and tabled for a later vote. I suppose Mr Danish's outlandish editorials still churn enough controversy to justify publishing them; but I hardly think they have wide support.

What Mr. Danish fails to mention, and is apparently completely unaware, is the larger picture, and why the group behind the proposed bill, East Boulder County United (EBCU), has taken the route of proposing civil disobedience at the local level: because all other levels of government have failed us. I worked with EBCU in 2012 and 2013 to get the Lafayette Community Bill of Rights on the ballot, which passed by 60 per cent. The Boulder judge that decided that state law preempted us from doing this six months later did not even address what was stated in that bill: that we created a law based on rights stated in the bill based on our right as a home rule community to do so.

In other words, we went through an arduous, year long legal process, involving significant investment of time, energy and effort by many Lafayette citizens, of passing a valid law based on our community rights and were ignored, based on court precedent alone, which was not an authentic legal analysis of what is in that new and innovative town charter amendement. That new innovation, community rights, was not given a chance to be heard. EBCU and concerned Lafayette citizens did not get their day in court, and an unchallenged legal maneuver supposedly decided the matter; not at all, in our opinion. That decision should have been appealed and heard by the Colorado Supreme Court, where there should have a real discussion of how our community rights were defined, and what that implies. But we lacked the resources to fund such an appeal.

This is not democracy. This is rule by corporations who fund politicians; that is, a plutocracy by the rich who own those corporations, which borders on facism. I hope that anyone reading this realizes this is the kind of government that the oil and gas industry has been creating, out of view of public scrutiny, for decades, primarily at the federal and state level of government. But now the times they are a'changing...

Let me state the matter quite factually: Lafayette's declared community rights were whitewashed by a judge intimidated by court precedent that has favored the oil and gas industry. Our judiciary and legislative bodes have been intimidated by this industry for decades. To quote Mike Foote, our representative in the state legislature, whom I personally heard state this in a local town meeting, nothing happens in the state legislature without the approval of oil and gas industry.

Does this sound democracy to you? I don't think so...

EBCU and Lafayette citizens are still waiting for their day in court; and the passage of a Climate Bill of Rights is another attempt to get that. The established law has been stacked in favor of the oil and gas industry for decades; this is an attempt to even the playing field -- and they are apparently so terrified of allowing even a semblance of true democracy to emerge in our legal system that they impulsively react with heavy handed, authoritarian force, backed up by the police power of the state.

Which is exactly what happened at Standing Rock. The Native Americans have been waiting for their day in court since the first treaties were broken. All they are asking at Standing Rock is that the oil and gas industry abide by the law and respect a past treaty. And how were they treated? We all saw how they were treated -- and they have stood their ground. If Mr Danish was not aware, this was an event covered by international news media, and represents a turning point in a global environmental movement, where native Americans, backed up by thousands of non-Native supporters, stood up to injustice, and the insanity of continuing to invest in an industry that is hell bent on destroying the planet.

I sincerely hope the Lafayette City Council will pass this Climate Bill of Rights, which I feel is what the majority of Boulder County citizens would also support -- and not allow fracking into our community. According to the amount of available open land in Boulder Country (see http://www.bouldercounty.org/o..., if 1,800 wells were drilled on county open space, and would be approximately one per 21 acres. If Mr Danish thinks that Boulder County citizens are ok with this, I am afraid he's going to be disappointed. His views are those of an outdated, backward looking libertarian crank who is out of touch with a progressive movement that is looking to the future, has no illusions about who is pulling the levers of power, or the power of civil, non-violent disobedience to change the established order of things, as history has shown.

Tuesday, May 03, 2016

What the Colorado Supreme Court does not see...

[Posted as a comment at coloradopeakpolitics.com on May 3, 2016. It is a blog by a conservative that supports fracking, and was crowing over the announcement today] about the Colorado Supreme Court decision that ruled against the Ft Collins and Longmont earlier bans on fracking.]

What COGA and all its supporters seem not to see in this faulty judgement by the Colorado Supreme Court (on May 2, 2016) is the big picture; namely, global climate change. This global imperative, which is happening whether you choose to acknowledge the scientific evidence or not, should have us all throwing ourselves into the true work to defend the planet, and in the process, creating a permanent, sustainable economy, with permanent jobs that people feel good about because it sustains their communities in the long term.

Continuing to support fracking, from that vantage point, makes about as much sense as put
ting more rocks in your backpack when you're trying to climb to the top of a mountain: it holds you back and is furthermore unnecessary. What we need is earnest investment in alternative energy -- and DISinvestment in fossil fuels. The technology and the resources for an alternative energy infrastructure to support our entire economy exists; what's lacking is political will. And that is exactly what the fossil fuel companies try to exploit -- because they don't have a logical leg to stand on...and so they challenge, and seek to confuse, and throw down every legal roadblock they can....because what they cannot offer is a real solution.

And this is what the Colorado Community Rights Act seeks to hasten: forging a blazing legal path forward through all the legal roadblocks that the fossil fuel industry, and other multi-national corporations, have been stealthly been crafting for decades, while the innocent public lay docile. No longer...the Colorado Community Rights campaign should be a clarion call to everyone who is fed up with business as usual, and even if you don't understand all the details of why community rights should be given legal precendent, or that constitutional rights for corporations is wrong, join us and take a stand! To volunteer to help, and learn more about our cause and volunteer, see  http://www.coloradansforcommunityrights.org

You will not be disappointed. We stand for a true and lasting sustainable world. COGA stands for profits of a dying industry that is poisoning the planet, and deserves to die, in order to make way for a true and living economy.

Wednesday, October 14, 2015

In support of Community Rights

[This is a Letter to the Editor that was published in the Boulder Weekly, October 1, 2015. I posted it online at the BW website, and they then printed it in their weekly edition.]

Community Rights 

I would like to add to the comments about the community rights vs. fracking issue, alluded to by Cliff Willmeng and Kate Toan [Re: “Passion without logic is bad” and “Fracking problem fix,” Letters, Sept. 24] I don’t believe the public at large is aware of the tectonic political forces that are involved here, which have consequences for humanity for its foreseeable future, but particularly in the 21st century, and how they will have the opportunity to partake in one of the most meaningful political votes in their lives, should the Colorado Community Rights Network prevail in getting their measure placed on the state ballot in 2016 — which I fully expect they will do. So some further public discussion is much warranted.

I fully support the community rights approach, which I arrived at after years of study of this issue. I was part of the 2011 campaign that resulted in the adoption of a resolution by the city of Boulder, where it was agreed that there should be a constitutional amendment that states only natural persons should be entitled to constitution a rights, and that money is not speech. This passed by a 73 percent majority... enough said about that.

But this was only a resolution, with no binding legal consequences. The community rights strategy is focused on taking on this legal battle with corporations to the next level: bringing public awareness to the fact that allowing corporate rights to supersede the rights of individuals and communities is wrong, both morally, legally and politically. We will be witnessing how much our political system has been badly skewed by allowing unlimited amounts of money into politics in this next presidential cycle, and what a disastrous and misguided legal direction this has been. Community rights is a far sighted legal strategy to begin this long process.

Far from the claim of Ms. Toan, that the aspirations of advocates of community rights are “designed to fail,” I would say that the advocates of community rights are attempting to correct a deep injustice that many of the American public would welcome.

The unfortunate reality is that this reality seems hidden from many of them, locked as it is inside a judicial system far distanced from public discussion... which is just the way the corporate ruling class, including state level political operatives, would wish it to remain.
In the interest of further positive public discussion, I would encourage Ms. Toan, and others interested, to attend the Democracy School, happening in Denver, October 23 and 24, hosted by the Colorado Community Rights Network, and find out what community rights is really about.

Rick Casey

Wednesday, September 17, 2014

Remarks to the Lafayette City Council to support the Community Rights Act

[The Lafayette City Council heard public comment at their meeting on Sept 16, 2014, about whether they should appeal the court ruling where Judge D.D. Mallard ruled in favor of COGA and against Lafayette Community Rights Act on July 24, 2014. This is the same judge that struck down Longmont's ban. The Council will make their decison by September 30, 2014, I believe. ]

An Address to the Lafayette City Council
by Rick Casey, Tuesday, September 16, 2013
concerning public support in defense of the
Lafayette Community Rights Act

Dear Council members,

I wish to convey to you tonight why I support the Lafayette Community Rights Act, and hope you to make every effort to defend it in court in the lawsuit that has been brought by COGA, the Colorado Oil & Gas Association.

This charter amendment is based on the legal concept of community rights, which the COGA brief does not even mention; all they care about is making money off of fracking inside our city limits, but I’m afraid they are missing the point.

I am here tonight to tell you that community rights is a growing human rights movement that is being fiercely fought out in eight states around this nation, and will continue to grow.  The history of community rights is undeniable: it is secured in the Declaration of Independence, the US constitution and Colorado’s state constitution. Our early colonial legal history abounds with examples of it. Unfortunately, community rights have not been a significant part of American jurisprudence, but Lafayette’s Amendment is an attempt to change this. The recent summary judgement in favor of COGA is under appeal and is only the beginning of this legal battle.

The lawsuit by COGA was brought against the municipal government of Lafayette; but that is different and apart from our rights as American citizens. US law does indeed show that municipal governments have little or no legal power to contradict state law. The basic case about this, Dillon’s Rule, is the doctrine that municipalities are simply extensions of the state, and can make no law that contradicts state law.

But the Community Rights Act is something that is outside and above Dillon’s Rule: it is about own inalienable rights to self government and municipal home rule. COGA brought suit against the Lafayette municipal corporation, which is just a creature of the law, but the peoples’ rights are inherent in them, and are secured by our constitutions. This amendment was inspired by CELDF, or the Community and Environmental Legal Defense Fund, a Pennsylvania non-profit that has fostered other community rights legal actions around the country.  They have been fighting these legal battles at the local level across the country for nearly two decades, and have established over a hundred such ordinances and charter amendments. None of them have been overturned as unconstitutional. 

Outside authorities, such as COGA and the COGCC, have no right to diminish these rights. Community self-government is the very foundation of American constitutional law. This is what this lawsuit is about; it is not about the preemption of the Colorado Oil & Gas Law, which the judge failed to note.

In a very real way, our Community Rights Act is a “last stand” of asserting our community’s rights against the onslaught of corporate power that dominates our economy, our regulatory environment and our entire political system. The actions by large corporations to enforce their will over and against the will of local communities who do not want to be fracked, factory farmed, mined, poisoned or whatever has reached a breaking limit – and that limit should and will be tested by the COGA lawsuit, and in the preliminary injunction that two Lafayette citizens with the Colorado Community Rights Network (or COCRN) has filed against them. 

This kind of fight, of local communities resisting corporate dominance, is taking place all over our planet in various forms, and the community rights movement will spreading as people wake up to fact that they do NOT have to live under corporate domination of our legal system and economies.  

The way that corporations have acquired so much legal power through their steady acquisition of constitutional rights since 1886 is a travesty of American justice, of which too few Americans are aware.  I am ashamed of the US Supreme Court’s decision on Citizens United, which allowed unlimited corporate spending in American politics. Many fear this is the beginning of the end of democracy in this country – and I hope I live to see the day that decision is overturned. And, in a way, I have – by our Community Rights Act.  

Because I am very proud to stand behind our Community Rights Act, which explicitly calls out corporate personhood, and explicitly states (quote) “Corporations seeking to engage in oil or gas extraction shall not have the rights of “persons” afforded by the US or Colorado constitutions, nor shall those corporations be afforded the protections of the commerce or contracts clause with the US Constitution or corresponding sections of the Colorado Constitution.” (end quote)  Now THAT is a declaration worth fighting for!

The legal history of community rights is summarized very clearly in the brief that COCRN has filed against COGA, which I would like to leave with you so you can examine it at your leisure.


Thank you for this opportunity to express my concerns.