Mendocino County Community Bill of Rights Fracking and Water Use Initiative, Measure S (November 2014)
|Voting on Fracking|
|Not on ballot
- 1 Text of measure
- 2 Support
- 3 Opposition
- 4 Background
- 5 Reports and analyses
- 6 Path to the ballot
- 7 Similar measures
- 8 See also
- 9 External links
- 10 References
If approved, this initiative measure would enact a community bill of rights for the county of Mendocino. The measure would establish the rights to: natural and chemical free communities and ecosystems, a clean environment, and self-government by the people, without manipulation and overwhelming influence from corporations. As a means of attaining these rights, the initiative would ban fracking and all related activity, imposing harsh criminal penalties for any violations.
The Community Rights Network of Mendocino County (CRNMC) is the group behind this initiative. The San Francisco-based organization Global Exchange, a group that assists communities in passing new laws that place the rights of residents over the interests of corporations, aided in organizing the initiative petition drive and in supporting the campaign for the measure.
The measure would dictate that violators of the fracking ban "shall be sentenced to one year in county jail and shall pay a fine of $10,000 for each violation." Moreover, it would establish that "each time the pump is turned on, and each stroke of the pump shall be a separate violation, and violation of each section of this Ordinance shall count as a separate violation," resulting in the possibility of extremely harsh criminal penalties for infractions.
Text of measure
The question on the ballot:
Shall the ordinance, which is titled An Initiative to Assert the Right of Residents of Mendocino County in Order to Secure Clean Water, Air and Soil and Freedom From Chemical Trespass, Which Would Ban Hydraulic Fracturing, Directional and Horizontal Drilling, and Waste Injection Wells in the County of Mendocino and Invalidates Any and All Laws Contrary to this Purpose to the Extent They Effect the County of Mendocino, be adopted?
The ballot title prepared by the county counsel:
An Initiative to Assert the Rights of Residents of Mendocino County in Order to Secure Clean Water, Air and Soil and Freedom From Chemical Trespass. The Proposed Ordinance Would Ban Hydraulic Fracturing "fracking", Directional and Horizontal Drilling, and Waste Injection Wells in the County of Mendocino and Invalidate Any and All Laws Contrary to this Purpose to the Extent They Effect the County of Mendocino.
—Mendocino County Counsel
The ballot summary prepared by the county counsel:
The proposed ordinance would establish a "Community Bill of Rights." This Community Bill of Rights provides in part that "[a]ll residents, natural communities and ecosystems in Mendocino County possess the right to water, air and soil that is untainted by toxins, carcinogens, particulates, nucleotides, and hydrocarbons introduced into the environment through unconventional extraction of hydrocarbons."
The proposed ordinance would also ban certain types of oil/gas extraction, which are called "unconventional extraction of Hydrocarbons" in the proposed ordinance. The ordinance defines "unconventional extraction of Hydrocarbons" as "hydraulic fracturing, "fracking", directional and horizontal drilling, and waste injection wells." The proposed ordinance creates strict liability for any damages to any person or property inside Mendocino County caused by "unconventional extraction" done by anyone inside or outside of the County of Mendocino.
The initiative would also declare null and void, within Mendocino County, any State, Federal or International law or other regulation that would violate the prohibitions contained within the proposed ordinance. The ordinance would also prohibit any corporations from asserting State, Federal or International laws to overturn this ordinance. The ordinance would also repeal all provisions of any ordinance, regulation or rules of any type, adopted by Mendocino County that are inconsistent with the provisions of the ordinance.
The proposed Ordinance, if enacted, would mandate "one year in county jail and...a fine of $10,000 for each violation." The proposed ordinance also states that "[e]ach time a pump is turned on, and each stroke of the pump shall be a separate violation ...." Furthermore, the ordinance would make it a violation "[e]ach day that fracking infrastructure equipment is staged or located in Mendocino County for more than 8 hours, whether or not the equipment is actually used for fracking."
The proposed ordinance would also require the County to schedule community meetings focused on changes to County government that would secure the rights of the people to local self-government if any government, corporation or natural person uses the legislature or courts to overturn any provision of the proposed ordinance.
—Mendocino County Counsel
Excerpts of the full text of the initiative ordinance are below:
Section 2--Statements of Law — A Local Bill of Rights
(a) Right to Community Self-Government. All residents of Mendocino County possess the right to a form of governance where they live which recognizes that all power is inherent in the people and that all free governments are founded on the people’s consent. Use of the Mendocino County government by the sovereign people to make law and policy shall not be deemed, by any authority, to eliminate or reduce that self-governing authority.
(b) Right to Clean Water, Air and Soil. All residents, natural communities and ecosystems in Mendocino County possess the right to water, air and soil that is untainted by toxins, carcinogens, particulates, nucleotides, and hydrocarbons introduced into the environment through the unconventional extraction of hydrocarbons.
(c) Rights of Natural Communities and Ecosystems. Natural communities and ecosystems possess rights to exist and flourish within Mendocino County without harm resulting from the unconventional extraction of hydrocarbons.
(d) Right to be Free from Chemical Trespass. All residents, natural communities and ecosystems in Mendocino County possess the right to be free from chemical trespass resulting from the unconventional extraction of hydrocarbons.
(e) Rights as Self-Executing, Fundamental, and Unalienable. All rights delineated and secured by this Ordinance are inherent, fundamental, and unalienable; and shall be self-executing and enforceable against both private and public actors.
Section 3--Statements of Law — Prohibitions Necessary to Secure the Bill of Rights
(a) It shall be unlawful for any government, corporation or natural person to engage in the unconventional extraction of hydrocarbons within Mendocino County.
(b) The prohibitions in section 3(a) of this Ordinance shall not apply to hydrocarbon extraction wells installed and operating in the County prior to the enactment of this Ordinance, only if the extraction process used for those wells prior to the enactment of this ordinance is not changed to a different extraction process after the enactment of this ordinance.
(c) Governments, corporations, and natural persons engaged in unconventional extraction of hydrocarbons, whether in Mendocino County or in a neighboring jurisdiction or offshore location; shall be strictly liable for all harms resulting from those activities caused to natural water sources, ecosystems, people and communities within Mendocino County.
(d) It shall be unlawful for any corporation, government or natural person to violate the rights recognized and secured by this Ordinance.
(e) No permit, license, privilege, charter, or other authority issued by any State, federal or international entity which would violate the prohibitions of this Ordinance or deprive any County resident of any rights secured by this Ordinance, the California Constitution, the United States Constitution, or other laws, shall be deemed valid within Mendocino County.
(a) Sec.4(a) Any corporation, government or natural person that violates any prohibition established by this Ordinance shall be guilty of a misdemeanor. Those liable for a violation are each and every officer and director of any corporation that engages in fracking in Mendocino County, and each and every person who operates any fracking machinery in Mendocino County. Upon conviction the violator(s) shall be sentenced to one year in county jail and shall pay a fine of $10,000 for each violation. Each time the pump is turned on, and each stroke of the pump shall be a separate violation, and violation of each section of this Ordinance shall count as a separate violation. Each day that fracking infrastructure equipment is staged or located in Mendocino County for more than 8 hours, whether or not that equipment is actually used for fracking, and each separate location in Mendocino County where such equipment is situated, is a separate violation. The court shall not authorize probation for any person convicted of any portion of this ordinance, under any circumstance.
(b) The County, or any resident of the County, may enforce the rights and prohibitions of this Ordinance through an action brought in any court possessing jurisdiction over activities occurring within the County. In such an action, the County or the resident shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees.
(c) Any action brought by either a resident of the County or by the County to enforce or defend the rights of ecosystems or natural communities secured by this Ordinance shall bring that action in the name of the ecosystem or natural community in a court possessing jurisdiction over activities occurring within the County. Damages shall be measured by the cost of restoring the ecosystem or natural community to its state before the injury, and shall be paid to the County to be used exclusively for the full and complete restoration of the ecosystem or natural community.
The Community Rights Network of Mendocino County (CRNMC) is the group behind this initiative.
A Vote Yes on S campaign was started to urge voters to approve the initiative.
The Community Environmental Legal Defense Fund has also been very instrumental in bringing anti-fracking measures to a vote of the people. It has been involved in writing several of the 2014 initiatives.
San Francisco-based Global Exchange, a group that assists communities in passing new laws that place the rights of residents over the interests of corporations, aided in organizing the initiative petition drive.
The CRNMC website lists the following organizations and individuals as supporters of its initiative measure:
- Mendocino Democratic Party
- Community Rights Organization of Willits
- Global Exchange
- Center for Biological Diversity
- Food & Water Watch
- Americans Against Fracking
- Californians Against Fracking
- Dan Hamburg, Mendocino County 5th District Supervisor
- Anderson Valley, Fort Bragg, Laytonville, and Willits Granges
- Holly Madrigal, Mayor of Willits
- Madge Strong, Willits City Council
- Steve Scalmanini, Ukiah's City Council
- Ocean Protection Coalition
- Meg Courtney, Vice Mayor, Fort Bragg
- Westport Village Society
- Turtle Creek Associates
- Dragonfly Wellness Center
- Doug Hammerstrom, Fort Bragg City Council
- Occupy Mendocino
- Transition Town 95490
- WELL Willits Economic LocaLization
- Allen and Els Cooperrider
- Mendocino Environmental Center & KMEC RadioSteve Antler
- Carla Jupiter
- Steve Antler
"Fracking explained: opportunity or danger," September 3, 2013
Arguments in favor
The CRNMC website features the following statement about its initiative:
Our Community Rights Ordinance, first and foremost, is intended to return power from the federal, state and corporate level to the Citizenry of Mendocino County. This ordinance makes it illegal in Mendocino County for any entity to engage in fracking and contains within it serious enforcement penalties. This ordinance begins the crucial process of giving citizens control over their community’s essentials: water quality, power, food, and local resources. As each community passes these community ordinances, one by one, we the People, gain power to decide, yes or no, when a corporation proposes devastating tactics like fracking.
—Community Rights Network of Mendocino County
The following was submitted as the official arguments in favor of Measure S:
Measure S establishes a Community Bill of Rights for the people of Mendocino County, built on the right to local community self governance, in order to exercise and secure our unalienable right to protect our health, safety and well being. These rights include the right to live in a healthy and safe ecosystem and the right to protect local water from harm caused by unconventional gas extraction. In order to uphold and protect those rights, this initiative bans all fracking related activities within the County, including the transportation of fracking fluids, and the use of local water for fracking.
Our nation was founded on the concept that government is instituted to secure our unalienable rights and derives it’s just powers from the consent of the governed. Activities such as fracking affect our health and safety, our quality of life, the health of our natural environment as well as our property values and must be decided by the Citizens who live here and who will be directly affected, or there is no “consent of the governed.”
Yet States routinely issue permits to chartered corporations that make it ‘legal’ for them to violate the rights of the people and refuse to recognize our right to say “no!” to harmful activities.
Measure S challenges those illegitimate laws which violate our fundamental rights. This measure elevates the rights of the people of Mendocino where they belong, 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.
Measure S protects our water by banning fracking and asserts the right of the people of Mendocino to make those kinds of decisions now and into the future.
—Karina McAbee Cotler
The following videos are featured on the CRNMC website:
If you have further content to add to the "Opposition" section of this article, please email the Local Ballot Measures Project staff writer.
Those opposed to fracking bans generally argue that they are anti-business and send and anti-business message, with the potential to cripple the local economy. Opponents of Measure S also point out the extremely harsh penalties included in the bill of rights initiative.
In the past, critics of community bills of rights have expressed concern that the expansive language concerning "rights to clean water, clean air and clean soil" could lead to expensive litigation.
Some opponents of Measure S specifically claim that it will simply be overruled through an expensive lawsuit because its extremely severe, accumulating penalties and unclear language will be an easy target for oil company lawyers. Douglas L. Losak, the Acting Mendocino County Counsel, gave the opinion that Measure S is in violation of both state and federal law. He said that the initiative's attempt to impose penalties for each individual infraction - defined by the initiative to include "each stroke of the pump" - would prove unenforceable and in violation of "the interstate commerce clause of the federal constitution.”
Bill Baker, a resident of Fort Bragg, presented an interesting alternative position on Measure S and fracking in Mendocino County. He strongly opposes fracking, espcially because he thinks it is a waste of water, but he believes that Measure S is a politically charged and ineffectual way of going about changing laws to prohibit fracking. He also claims that for the health of residents, fracking would have to be prohibited throughout the state rather than just in county boundaries. An excerpt of his argument is below:
Instead of actually dealing with fracking, Proposition S addresses other unrelated issues of political sovereignty that I am not qualified to comment on, being neither a lawyer nor a constitutional scholar. As near as I can tell, they are intended to defy state and federal authority, and amend the California State and US Constitution by local ordinance.
If you really do question fracking and want to reform it, you might want to vote no on S.
No official arguments in opposition to Measure S were submitted.
- See also: Fracking in California
The process of fracking is under heavy scrutiny in California. The 2014 California Democratic Party Platform called for an immediate moratorium on fracking, a position not supported by California's Democratic Governor Jerry Brown. Fracking has been occurring in California for more than 30 years.
Native Americans are the first recorded group to have collected oil in California. The first oil company began mining and distilling oil in 1856, and, in 1950, California produced 331 million barrels of oil. Several large natural gas fields were found throughout the 1970s and 1980s. The Monterey Shale formation in California is expected to hold 15.4 billion barrels of oil, or 65 percent of the technically recoverable shale oil in the lower 48 states, according to the U.S. Energy Information Administration.
To the right is a map of all the oil and gas wells in Mendocino County as of July 18, 2014. A black star denotes an area of oil and gas well activity. There do not appear to be any oil or gas wells in Mendocino County. There are known oil, natural gas, coal and oil shale resources in the county, but according to a 2009 report none of these are economical to develop. According to a 2009 report by the county, it operates under a voter-approved prohibition against on and off-shore oil and gas facilities.
The Department of Conservation's Division of Oil, Gas and Geothermal Resources (DOGGR) oversees oil and gas development in California. Water resources are regulated by the Regional Water Quality Control Boards (RWQCB) and the State Water Resources Control Board (SWRCB). According to the DOGGR, most of the oil and gas production in California is happening using vertical wells that are drilled into traditional oil and natural gas reservoirs. The DOGGR regulates well casings, cements and the other aspects of protecting underground and surface water resources. Under current law the DOGGR does not need to be notified when a well is fractured. In 2013 the California State Legislature passed Senate Bill 4, regulating well stimulation, which includes fracking and other activities. Senate Bill 4 requires interim well regulations that are now in effect, a separate set of regulations that go into effect in 2015, the adoption of environmental impact reports in 2015 and well stimulation permits. These permits are publicly available on the DOGGR's website.
Reports and analyses
The following impartial analysis of Measure S was provided by the office of the county counsel:
This measure seeks voter approval to establish a community bill of rights for the people of Mendocino County and to ban industrial activities in Mendocino County that are associated with unconventional extraction of Hydrocarbons and to provide for enforcement of this bill of rights and its prohibitions. The measure was placed on the ballot by a petition signed by the requisite number of voters.
This measure shall become effective only upon the affirmative vote of fifty-one percent (51%) of those electors voting on the measure.
The measure defines unconventional extraction of Hydrocarbons as hydraulic fracturing, fracking, directional and horizontal drilling, and waste injection wells. Hydrocarbons include, but are not limited to, methane, benzene, propane, petroleum and oil.
The measure would supersede International, Federal, and State laws. Also, the measure would prevent any corporation from asserting any protection under International, Federal, or State laws that would violate the measure.
Violation of the measure would result in one year in County jail and a fine of $10,000.00 for each violation. Violation is described as each time a pump is turned on, and each stroke of the pump shall be a separate violation. Additionally, each day that fracking infrastructure equipment is staged or located in Mendocino County for more than eight hours, whether or not the equipment is actually used for fracking, would be a violation of the measure. This measure does not define fracking infrastructure equipment. COST TO ENFORCE: Unknown
A YES vote will authorize the ban of unconventional extraction of Hydrocarbons.
A NO vote will disallow the ban of unconventional extraction of Hydrocarbons.
—Rebecca C. Sudtell, Mendocino County Deputy Counsel 
Path to the ballot
On June 27, 2014, Shannon Biggs, the community rights director of Global Exchange, and local members of the Community Rights Network of Mendocino County turned in petition sheets containing 6,353 signatures. Signatures from 10 percent of the registered voters in the county were required to qualify the initiative for the ballot. This number amounted to 4,730. The county registrar certified that enough of the submitted signatures were valid, giving the decision on the initiative to the voters at the November 4, 2014 election.
- See also: Notable 2014 local measures
- City of Denton Fracking Ban Initiative (2014)
- City of Athens Fracking Ban Proposal Initiative (November 2014)
- Santa Barbara County Fracking Ban Initiative, Measure P (November 2014)
- San Benito County Fracking Ban Initiative, Measure J (November 2014)
- Mendocino County Community Bill of Rights Fracking and Water Use Initiative, Measure S (November 2014)
- Village of Gates Mills "Community Bill of Rights" Fracking Ban Initiative (November 2014)
City of Niles "Community Bill of Rights" Fracking Ban Initiative (November 2014)
City of Loveland Two Year Fracking Suspension Initiative, Question 1 (June 2014)
Youngstown "Community Bill of Rights" Fracking Ban Charter Amendment (May 2014)
Johnson County Fracking Ban Referendum (March 2014)
- Local fracking on the ballot
- Mendocino County, California ballot measures
- November 4, 2014 ballot measures in California
- Vote Yes on S website, accessed October 6, 2014
- Community Rights Network of Mendocino County website
- Community Environmental Legal Defense Fund website
- Community Rights Network of Mendocino County facebook page
- Community Rights Network of Mendocino County website, accessed July 15, 2014
- Daily Journal News, "6,300 sign petition of support for Mendocino County fracking ordinance," July 2, 2014
- Community Environmental Legal Defense Fund, "Press Release: Community Rights Network of Mendocino County, CA, Turns In Over 6,000 Signatures for Rights-based Fracking Ban Initiative," June 27, 2014
- Community Rights Network of Mendocino County website, archived July 15, 2014
- Mendocino County Elections Office website, "Final list of candidates and measures for November 4, 2014 election," archived August 20, 2014
- Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
- Vote Yes on S website, accessed October 6, 2014
- Community Environmental Legal Defense Fund website, accessed August 27, 2014
- CRNMC website, "Home," archived July 15, 2014
- Mendocino County Elections Office website, "Measure S ballot information," archived October 6, 2014
- [http://www.denverpost.com/dnc/ci_24219937/lafayette-opposes-fracking-ban-occupation-tax-ballot-items#ixzz2hKqLAcU9 Denver Post, "Lafayette opposes fracking ban, occupation tax ballot items," October 1, 2013]
- Anderson Valley Advertiser, "Mendocino County Today: Tuesday, September 23, 2014," September 23, 2014
- Ukiah Daily Journal, "Letters to the Editor: Measure S not the answer," October 13, 2014
- Berkeley Law, "Regulation of Hydraulic Fracturing in California: A Wastewater and Water Quality Perspective," April 2013
- Think Progress, "Fracking is Creating a Rift Between Governor Jerry Brown And Some California Democrats," March 13, 2014
- Environmental Engineering & Contracting, Inc., "A Brief History of Hydraulic Fracturing," accessed May 6, 2014
- California Department of Conservation, "California Oil, Gas and Geothermal Resources: an Introduction," 1993
- U.S. Energy Information Administration, "Review of emerging resources: U.S. shale gas and shale oil plays," accessed May 6, 2014
- One barrel of oil produces about 19 gallons of gas U.S. Energy Information Administration, "Frequently Asked Questions," May 30, 2013, accessed March 18, 2014
- Department of Conservation, "Division of Oil, Gas, & Geothermal Resources Well Finder," accessed May 7, 2014
- Mendocino County, "Chapter 4: Resource Management Element, August 2009
- Department of Conservation, "Hydraulic Fracturing in California," accessed May 7, 2014
- Department of Conservation, "Well Stimulation," accessed May 7, 2014