Why a Rights Based Ordinance In Nottingham, NH?

by: Posted on: September 08, 2013

By Chris Mills, CELDF.org

August 10th, 2013. Chris Mills, co-founder of the Nottingham Water Alliance, writes on why a Community Rights Ordinance for Nottingham.

WHY A RIGHTS BASED ORDINANCE IN NOTTINGHAM?

The rights of municipal corporations and communities has been eroded over time to where we, municipality and community, have very little power over our own destiny through the established regulatory legal system.

The Declaration of Independence (adopted in Congress July 4 1776) was the founding document of this country. It says, “… that all men are created equal, that they are endowed…with certain unalienable rights…life, liberty and the pursuit of happiness.”  It also says that governments derive “…their just powers from the consent of the governed.“ This thought is also repeated in the New Hampshire Constitution, Articles 1, 8, and 10 which was written in 1784 when the country was still under the laws of the first US Constitution (known as the Articles of Confederation) ratified by all thirteen States and which gave most of the power to the States and very little power to the Federal Government. I believe that those NH Constitution articles also fall in the category of ‘unalienable rights’. These are rights that cannot be taken away.

The assault on these ‘unalienable’ rights started with the second US Constitution, written by a handful of very wealthy white male landowners behind closed doors in 1787. The only people who were permitted to vote were white male landowners with more than 500 acres. They started to take their power with, among other things, the Contracts Clause and the Commerce Clause. The Commerce Clause says that only Congress can manage trade, which means that neither States nor Communities can prevent ‘trade’ in their community.

In 1819 the case involving NH’s Dartmouth College defined a charter between a corporation and the State as a contract and made them equal partners. Then in 1868 Justice John Forrest Dillon in his Dillon’s rule made the Municipal Corporations relationship to the State as children to a parent. This means that Corporations and the State are equal but Municipal Corporations (like Nottingham) are subservient to both. That is why towns and communities cannot do anything unless the State has specifically authorized it. If the State hasn’t said you can, then you can’t.

In 1886 the case of Santa Clara County vs Southern Pacific Railroad made a corporation a legal person. Corporations then went back to the fourteenth amendment of 20 years earlier (the equal protection amendment) and claimed access to the entire US Constitution. That amendment never mentions corporations, and the fourteenth amendment was not intended to include corporations. It was intended to give freed slaves protection after the 13th amendment of a year earlier.

I do not believe that the government observes Article 1, of the NH Constitution which says, “…all government of right originates from the people.” Our present government now takes little notice of, ‘we, the people’.

These are just the highlights of the erosion of our ‘unalienable rights’. This ‘illegitimate’ structure of law has been put in place, for the most part by a single judge or a handful of men at a time—not by a democratic process or Congress. In addition, corporations and their lobbyists are those, who, for many years, have proposed or amended the wording of our State and Federal laws to their advantage and to the detriment of Municipal corporations and communities.

To attempt to correct the problem by asking the State or the courts to give away their power to municipalities or communities is an exercise in futility for obvious reasons. Save our Groundwater has been pursuing their cause through the State Legislature and the Courts since 2001. Communities still have no more control over their groundwater now than they did in 2001. To keep on going through the state or courts and expect a different result is a waste of money.

Major changes in the existing structures of law have historically come from grass roots organizations, sometimes at great personal sacrifice. Without going back to 1215 and the Magna Carta and the various bloody revolutions in other countries, here, in the US we have examples of the abolitionists, the suffragettes, Rosa Parks and the civil rights movement, to name a few, all of which came from the bottom up, never from the top down.

A Rights Based Ordinance (RBO) is a means of reclaiming our ‘inalienable rights’ by challenging that structure of law that currently exists and until we do so we will continue to have no control over what happens in our town. This is why our Nottingham Water Rights and Local Self-Government Ordinance denies corporations access to the commerce clause and the contracts clause and does not recognize a corporation as a person. Newfields and Shapliegh Maine passed an RBO and Nestle pulled their test wells without challenging it in court. Similar stories exist in about 150 towns across the country where RBOs have been passed, in many cases with the full support of the Board of Selectmen or its equivalent. In New Hampshire an increasing number of towns have passed RBOs whether in water conservation or opposition to the Northern Pass. It is my opinion that large corporations recognize that if they challenge these RBOs in court and lose, they stand to lose a great deal of power, far more devastating to corporations than the loss of a few hundred gallons of water per day.

Nottingham’s Water Rights Ordinance was developed, its basics taught in a whole variety of meetings and courses over a year, and was passed by a large majority, legally, at the 2008 Town Meeting despite efforts to sink it. It is the law in Nottingham. Even though the Board of Selectmen is obligated to enforce this law, our former Board voted not to enforce it because they were told by attorneys that it was illegal. ‘Illegal’ just means that it is contrary to some law (like NH RSA 485 C), it does not mean it is wrong. Of course it is illegal – it is challenging the present structure of law. The abolitionists, suffragettes and Rosa Parks were all ‘illegal’ until those laws they challenged were changed. It is my understanding that individual Selectmen are protected from individual lawsuits as long as they are fulfilling the required duties of a Selectman.

Our present Board of Selectmen is now seeing that this ordinance may be the only way we can protect our water supply, and are looking more favorably upon it. When this legislation was being proposed, some LLC’s and Selectmen were concerned that losing their corporate personhood would be detrimental. We pointed out that they still had their corporate shield. No Nottingham LLC has been adversely affected in the last five and a half years by this ordinance.

This Ordinance has been used by the citizens, over the years, to advise many potential investors through the Chapter 11 (reorganization) efforts of USA Springs that this ordinance will be enforced. Now in Chapter 7 (dissolution) USA Springs through MyKroWaters is trying to get their Large Groundwater Withdrawal Permit renewed. They too have been advised that this Ordinance exists, and will be enforced by a citizens group or the Board of Selectmen, and that it says, “No corporation or syndicate shall engage in water withdrawals in the Town of Nottingham.” (The full text of this ordinance can be seen online on the Nottingham Town website by clicking on ‘Policies & Ordinances’ and then on ‘Water Rights’.)

The Nottingham Water Alliance is represented by legal counsel who will provide us with legal services pro bono through the appeals process if necessary.

Finally, in response to arguments that this Ordinance is unenforceable, I leave you with the following NH legal quote:

“In New England town meetings the voters are the sovereigns, and their will, when duly expressed, is supreme.” (Neville v. Highland Farm, Inc. 144 N.H.419, 429 (1999), quoting Attorney General v. Folsom,69 N.H.566,557 (1899)

Copyright, Community Environmental Legal Defense Fund. Reprinted with permission.


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