New Mexico

December 4, 2013

World is watching Mora County battle against fracking

Source: The Santa Fe New Mexican, November 24, 2013
Posted on:

It is a script destined for a Hollywood movie: A rural, low-income, mostly Hispanic New Mexico county passes a community rights ordinance, bans oil and gas drilling, and is sued by rich, greedy oil and gas barons.

“We’re protecting our water,” say two Mora County commissioners who support the ordinance.

“It’s unconstitutional,” cry the Independent Petroleum Producers of New Mexico and a couple of private property owners who are suing over the ordinance. Their lawsuit was filed Nov. 15 in federal District Court.

People around the U.S. and the world who are deeply concerned about the influence of big corporations and the potential environmental damage from hydraulic fracturing methods — used to tap oil and gas supplies — cheer on Mora County.

But there’s more to this story — nuances and tensions that are hard to uncover unless you were born and raised in this hard-scrabble, beautiful and resilient Northern New Mexico county.

Most Mora County residents oppose oil and gas drilling. But some of them say there were better ways to prevent drilling, strategies that had a better chance of standing up in court. They believe the ban was an ill-advised move that will have high costs for an already cash-strapped county government and will gain it nothing except attention.

Others say the ordinance is an example of an outside Anglo group using a poor, minority county for its own ends.

But there’s no backing down from the fight now.…

October 12, 2012

New Mexico Supreme Court finds “sudden and accidental” exception to pollution exclusion allows coverage of gradual but unexpected and unintended releases

Source:, October 4, 2012
By: Orrick Herrington & Sutcliff LLP

In United Nuclear Corp. v. Allstate Ins. Co., Docket No. 32,939 (N.M. S. Ct., Aug. 23, 2012), New Mexico’s highest court concluded that the “sudden and accidental” exception to the qualified pollution exclusion provides coverage for “unexpected and unintended” releases of pollutants, and does not require that the releases be temporally abrupt. General and excess liability policies issued from the early 1970s through the mid-1980s usually contained this exclusion. The case involved alleged releases of contaminants at tailings impoundments at several uranium mines. Allstate asserted that coverage of the releases was excluded because they were not temporally abrupt. Reversing an intermediate appellate court decision, the court found the term “sudden” ambiguous, in that it could include either abrupt or unexpected releases. The court cited multiple dictionary definitions and the divergence of opinions among other courts as a basis for its opinion that the term was ambiguous. Then the court considered the drafting history of the exclusion as a basis for assessing insurance industry intent. The court concluded that “sudden” should be given the non-temporal interpretation favoring coverage.…

April 25, 2012

DOJ: Freeport-McMoran To Pay $6.8M For Natural Resource Damage Claims

Dow Jones News Service, April 24, 2012
Posted on:

Copper producer Freeport-McMoRan Corp. (FCX) and a subsidiary have agreed to pay $6.8 million to settle federal and state natural resource damage claims related to the Morenci copper mine in Arizona, the Department of Justice and the Department of the Interior said.

The complaint, which was filed jointly by the U.S. and Arizona on Tuesday in the U.S. District Court in Arizona, alleges that the release of hazardous substances from Freeport-McMoran Morenci Inc.’s mine site damaged or destroyed surface waters, terrestrial habitat and wildlife and migratory birds in the area.

The Morenci Mine was owned and operated by Phelps Dodge Corp. until it was acquired by Freeport-McMoRan in 2007.

Under the consent decree lodged Tuesday in federal court, the company will pay $6.8 million to the Department of the Interior, which will be used for projects to restore or acquire wildlife and wildlife habitat in the impacted area.

In February, the federal district court in New Mexico approved a consent decree between the U.S., New Mexico and Freeport-McMoRan that resolved natural resource damages claims at three mining sites in southwestern New Mexico.

Shares closed at $36.99 Tuesday and were unchanged after hours. The stock is down 33% over the past 12 months.…

February 3, 2012

Current Developments in A&E Law

Source: Beazley, A&E Reporter, Volume 7, Issue 1 – January 2012

New Mexico Statute Prohibits Choice of Law Provisions

Design professionals performing services on projects located in New Mexico are advised that the New Mexico legislature passed House Bill 64 which enacted NMSA (1978) 57-28A-1, and applies to all construction contracts entered into on or after July 1, 2011. The statute provides that any provision of a construction contract is void, unenforceable and against New Mexico public policy if the provision: 1. makes the construction contract subject to the laws of another state; or 2. requires any litigation arising from the contract to be conducted in another state. Construction contract is broadly defined pursuant to section C of the statute as “a public, private, foreign or domestic contract or agreement related to construction, alteration, repair or maintenance of any real property in New Mexico and includes agreements for architectural services, demolition, design services, development, engineering services, excavation or other improvement to real property, including buildings, shafts, wells and structures, whether on, above or under real property.” The statute also requires that any mediation, arbitration “or other dispute resolution proceeding arising from or relating to” a construction contract performed in New Mexico shall be conducted in New Mexico.

This prohibition will disallow client attempts to modify industry standard documents’ choice of law provisions, which typically stipulate that professional services agreements are governed by the law of the place where the project is located (e.g., Article 10.1 in the AIA B101 – 1007 Standard Form of Agreement between Owner and Architect). However, the statute cuts both ways because there could be specific issues under applicable New Mexico law governing the interpretation and enforcement of the contract for which out-of-state design professionals should seek the assistance of local counsel.…