SWEPI, LP v. Mora County (81 F. Supp. 3d 1075, 2015)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on SWEPI’s Motion for Partial Judgment on the Pleadings, filed May 31, 2014 (Doc. 21)(“Motion”). The Court held a hearing on November 3, 2014. The primary issues are: (i) whether the Court may consider evidence outside the pleadings to determine issues of justiciability; (ii) whether Plaintiff SWEPI, LP has standing to bring its claims; (iii) whether SWEPI, LP’s claims are ripe; (iv) whether SWEPI, LP can bring a claim for a violation of the Supremacy Clause of article 6 of the Constitution of the United States of America; (v) whether the Mora County, N.M., Ordinance 2013-10 (2013), filed January 10, 2014 (Doc. l-l)(“Ordinance”), violates the Supremacy Clause; (vi) whether the Ordinance violates SWEPI, LP’s substantive due-process rights; (vii) whether the Ordinance violates the Equal Protection Clause of Fourteenth Amendment to the Constitution of the United States; (vii) whether the Ordinance violates the First Amendment to the Constitution of the United States; (viii) whether the Defendants have the authority to enforce zoning regulations on New Mexico state land; (ix) whether New Mexico state law preempts the entire field of oil-and-gas production; (x) whether the Ordinance conflicts with state law; and (xi) whether the valid provisions of the Ordinance can be severed from the invalid provisions. Because the Court may consider evidence outside the pleadings for issues of justiciability, the Court will consider outside evidence solely to determine standing and ripeness. SWEPI, LP has suffered an injury in fact and thus has standing to bring each of its claims. Additionally, because the Ordinance has already been enacted, and because SWEPI, LP would suffer harm if the Court delayed considering its claims, each of SWEPI, LP’s claims are. ripe, except for its claim under the Takings Clause of the Fifth Amendment to the Constitution of the-United States. SWEPI, LP has not sought just compensation for its takings claim through a state inverse condemnation action, and, as such, it is not ripe. SWEPI, LP may bring its claim under the Supremacy Clause, because it can bring independent claims through a 42 U.S.C. § 1983 action and under the constitutional provisions that it asserts trumps the Ordinance. Also, the Ordinance violates the Supremacy Clause by conflicting with federal law, and certain provisions must be invalidated. The Ordinance does not, however, violate SWEPI, LP’s substantive due-process rights, because the Defendants had a legitimate state interest for enacting the Ordinance. For the same reason, the Ordinance does not violate the Equal Protection Clause. The Ordinance violates the First Amendment by chilling protected First Amendment activities. The Defendants lack the authority to enforce zoning laws on New Mexico state lands, and thus, may not enforce the Ordinance on state lands. Because there is room for concurrent jurisdiction between state and local laws, New Mexico state law does not preempt the entire field of oil- and-gas production. The Ordinance, however, conflicts with New Mexico state law by banning hydrocarbon extraction activities, and certain provisions must be invalidated. Finally, the invalid provisions are not severable from the remaining valid provisions, and the Ordinance, in its entirety, must be invalidated. The Court will, thus, grant the Motion in part and deny it in part, and will invalidate the • Ordinance.

FACTUAL BACKGROUND

In deciding a motion for judgment on the pleadings that a plaintiff filed, the Court may consider only “ ‘allegations of fact [that] are admitted or not controverted in the pleadings’ ” so that “ ‘only questions of law remain to be decided by the district court.’ ” Kellar v. U.S. Dep’t of Veteran’s Affairs, No. CIV 08-0761 WYD/KLM, 2009 WL 1706719, at *1 (D.Colo. June 17, 2009) (Daniel, C.J.) (quoting 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1367 (3d ed.2004)). The Court will, thus, in connection with this motion for judgment on the pleadings, state and consider only those facts alleged in the Complaint for Declaratory and Injunctive Relief and Damages, filed January 10, 2014 (Doc. l)(“Complaint”), which the Defendants did not deny in the Answer to Complaint, filed March, 13, 2014 (Doc. 9)(“Answer”). The Court’s previous Memorandum Opinion and Order provides a fuller statement of the allegations in the Complaint, including allegations which the Defendants deny. See SWEPI, LP v. Mora Cnty., No. CIV 14-0035 JB/SCY, 2014 WL. 6983288, at *1-11 (D.N.M. Dec. 5, 2014) (Browning, J.).

1. The Parties.

SWEPI, LP filed the Complaint, seeking an injunction to prohibit the Defendants from enforcing the Ordinance and seeking monetary damages. See Complaint ¶ 2, at 2; Answer ¶ 2, at 2. SWEPI, LP entered into an oil-and-gas lease with the State of New Mexico through a lease dated August 1, 2010. See Complaint ¶ 5, at 2; Answer ¶ 5, at 2 (“Defendants admit that a copy of a lease dated August 1, 2010 between the State of New Mexico and SWEPI is attached to the Complaint as exhibit 3.”). See also Oil and Gas Lease between SWEPI LP and the State of New Mexico, dated August 1, 2010, filed January 1, 2014 (Doc. l-3)(“Aug. 1, 2010, Lease”).

Mora County, New Mexico, is a political subdivision of the State of New Mexico. See Complaint ¶ 8, at 3. The Mora County Board of Commissioners is the governing body responsible for exercising the powers that the State of New Mexico has vested in Mora County. See Complaint ¶ 9, at 4. Paula A. Garcia, John P. Olivas, and Alfonso J. Griego (collectively the “Individual Commissioners”) are the three members of the Mora County Board of Commissioners. Complaint ¶¶ 10-12, at 4.

2. The Ordinance.

On April 29, 2013, the Mora County Board of County Commissioners voted two to one to adopt the “Mora County Community Water Rights and Local Self-Government Ordinance.” Ordinance 2013-01 (the “Ordinance”). Complaint for Declaratory and Injunctive Relief and Damages ¶ 1, at 1, filed January 10, 2014 (Doc. l)(“Complaint”); id. ¶ 31, at 8. See Answer ¶ 1, at 1; id. ¶ 31, at 5. The Ordinance, in full, provides:

WHEREAS, We, the residents in Mora County, are a multi-cultural community with indigenous roots of Many; and

WHEREAS, We recognize the Earth, water, and air as a source of life for all living in Mora County; and

WHEREAS, We are convinced that the quality of life for residents in Mora County, for both the present and the future, will be destroyed if we allow at-risk exploitation and pollution of the Earth, water, and air; and

WHEREAS, We the People of the County of Mora declare that we have the duty to safeguard the water both on and beneath the Earth’s surface, and in the process, safeguard the rights of people within the county of Mora and the rights of the ecosystems of which Mora County is a part; and WHEREAS, We the People of Mora County declare that all of our water is held in the public trust as a common resource to be used for the benefit of Mora residents and of the natural ecosystems of which they are a part. We believe that industrial use of water supplies in this county placing the control of water in the hands of a corporate few, rather than the county would constitute abuse and usurpation; and that we are therefore duty bound to oppose such abuse and usurpation. That same duty requires us to recognize that two centuries’ worth of governmental conferral of constitutional powers upon corporations has deprived people of the authority to govern their own communities, and requires us to take affirmative steps to remedy that usurpation of governing power; and

WHEREAS, we are conscious of the urgency of taking decisive action to protect our collective rights and the rights of future generations, and of ensuring a balanced environment for the survival of all residents of Mora County; THEREFORE, .

BE IT ORDAINED BY THE GOVERNING BODY OF MORA COUNTY, NEW MEXICO ... AN ORDINANCE PROTECTING THE RIGHT OF HUMAN COMMUNITIES, NATURE, AND NATURAL WATER, BY ESTABLISHING A LOCAL BILL OF RIGHTS FOR MORA COUNTY THAT PROTECTS THE NATURAL SOURCES OF WATER FROM.DAMAGE RELATED TO THE EXTRACTION OF OIL, NATURAL GAS, OR OTHER HYDROCARBONS, BY AFFIRMING THE RIGHT TO LOCAL AUTONOMY AND SELF-GOVERNANCE, AND BY ELIMINATING LEGAL PRIVILEGES AND POWERS FROM CORPORATIONS VIOLATING THE ORDINANCE.

Section 1. Name and Purpose

Section 1.1 Name: This Ordinance shall be known and may be cited as the “Mora County Community Water Rights and Local Self-Government Ordinance.”

Section 1.2 Purpose: The People of the County of Mora are a cohesive community of diverse elements, united by common culture, social bonds and a common destiny, and are represented politically in various aspects by the Mora County Government, numerous Acequias, Land Grants and Mutual Domestic Water Consumers Associations. The People of Mora County recognize that water is essential for the life, prosperity, sustainability, and health of their community and that damage to natural groundwater and surface water sources imposes great tangible loss, to the People, natural communities and ecosystems of Mora County, not just for today but for future generations. The People of Mora County recognize that they may be forced, without their consent, to endure or attempt to repair harm inflicted on their environment and their vital water supply, which they have no equivalent governing authority to prevent under current state and federal law. The governing body of Mora County adopts this Mora County Community Water Rights and Local Self-Government Ordinance to overcome that liability, to provide for community health and safety, to promote a sustainable lifestyle, and to secure' the comfort and convenience of the people.

Section 2. Authority

This Ordinance is enacted pursuant to the inherent right of the residents of Mora County to govern their own community. That authority precedes government and is secured, without limitation, by:

The Treaty of Guadalupe Hidalgo, Article VIII & Article IX, which guarantees the “free enjoyment of their liberty and property” of the inhabitants of what became Mora County, and which states that property of every kind “shall be inviolably respected.” According to a 2001 Government Accounting Office report (http://www. gao.gov/new.iemts/d01951.pdt), this guarantees traditional communal use rights under the Treaty, including, but not limited to, the following rights-hunting “caza,” pasture “pastas,” wood gathering “lefia,” and watering “abrevederos;”

The Declaration of Independence, which states that governments are instituted to secure the rights of people, “deriving their just powers from the consent of the governed;”

The New Mexico Constitution, Article 2, which declares that “all political power is vested in and derived from the people: all government of right originates with the people, is founded upon their will and is instituted solely for their good.” That section also declares that the people “have the sole and exclusive right to govern themselves as a free, sovereign, and independent state” and that “all persons are born equally free, and have certain natural, inherent and inalienable rights” and that “[t]he enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people;”

The Mora County Comprehensive Land Use Plan, which states that “[t]he connection between our land, our water and our people has sustained our culture since the first settlements in Mora County, and our future depends on keeping these connections strong. Water is a vital link, which, if severed from the land, will also fragment our people from their land. The allocation of our limited water resources must recognizé traditional subsistence agricultural and grazing activities as a priority over other types of more profitable land uses. Water is not just a commodity to be bought and sold, or exploited for short-term gains. Water is the lifeblood of Mora County’s traditions, culture and land use. A sustainable future for Mora County requires protection of the most valuable resource for our communities — the Water!”

Section 3. Defínitions

Section 3.1: “Corporation” shall mean any corporation, limited partnership, limited liability partnership, business trust, or limited liability company organized under the laws of any state of the United States or under the laws of any country, and any other business entity that possesses State-conferred limited liability attributes for its owners, directors, officers, and/or managers.

Section 3.2: “Extraction” shall mean the digging or drilling of a well for the purposes of exploring for, developing or producing oil, natural gas, or other hydrocarbons.

Section 3.3: “Horizontal drilling” shall mean intentional deviation of a wellbore from the vertical for the purpose of reaching subsurface areas laterally remote from the point where a well drilling bit or similar equipment enters the earth at the surface.

Section 34: “Hydraulic fracturing” shall mean an activity in which water, propane, diesel, chemicals and a solid prop-pant or any other agent are pumped into a wellbore at a rate sufficient to increase the pressure downhole to a value in excess of the fracture gradient of the formation rock, causing the formation to crack, thus allowing the fracturing fluid to enter and extend the crack farther into the formation, forming passages through which natural gas, oil, or other hydrocarbons can flow.

Section 3.5: “Hydrocarbons” shall mean any of numerous organic compounds, such as benzene and methane, that contain only carbon and hydrogen.

Section 3.6: “La Querencia de la Tierra” shall mean the loving respect which Mora County residents have towards the land and Earth, which is rooted in our indigenous worldview — the Earth is living and holy, is the habitat that sustains us, and is composed of all natural & living systems, flora and fauna — interrelated, interdependent and complementary — which share our common destiny: The right to live free from contamination.

Section 3.7: “Natural Gas” shall mean any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rari-fied state at standard temperature or pressure conditions, and/or gaseous components or vapors occurring in, or derived from, petroleum or natural gas.

Section 3.8: “Oil” shall mean any thick, flammable, yellow-to-black mixture of gaseous, liquid, and solid hydrocarbons that occur naturally beneath the earth’s surface.

Section 4. Statements of Law-Rights of Mora County Residents and the Natural Environment

Section 1±.1. Right to Water: All residents, natural communities and ecosystems in Mora County possess a fundamental and inalienable right to sustainably access, use, consume, and preserve water drawn from natural water cycles that provide water necessary to sustain life within the County.

Section b.2. Right of Water for Agriculture: All Mora County residents possess the fundamental and inalienable right to unpolluted natural water to produce healthy food, to nourish our bodies, livestock and land and to continue “La Querencia de la Tierra,” Love of the Land.

Section Jp.3. Rights of Natural Communities: Natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess inalienable and fundamental rights to exist and flourish within Mora County against oil and gas extraction. Residents of the County, along with the Mora County Commission, shall possess legal standing to enforce those rights on behalf of those natural communities and ecosystems. Natural communities and ecosystems protected by this ordinance shall be protected on all lands within Mora County, including those owned by the state and federal government

Section AA Right to a Sustainable Energy Future: All residents, natural communities, and ecosystems in Mora County possess a right to a sustainable energy future, which includes, but is not limited to, the development, production, and use of energy from renewable fuel sources, and the right to have an energy system based on fuel sources other than fossil fuel sources. This right shall also include the right to energy practices that do not cause harm, and which do not threaten to cause harm, to people, communities, or the natural environment.

Section L5. Right to Self-Government: All residents of Mora County possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people’s authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.

Section 4-6. People are Sovereign: The Mora County Commission shall be the governing authority responsible to, and governed by, the residents of the County. Use of the “Mora County” municipal corporation by the sovereign people of the County to make law shall not be construed to limit or surrender the sovereign authority or immunities of the people to a municipal corporation that is subordinate to them in all respects at all times. The people at all times enjoy and retain an inalienable and indefeasible right to self-governance in the community where they reside.

Section k.7. Rights of La Querencia de la Tierra: The farm-based indigenous/mestizo (mixed blood) people who created the original Mora County culture considered the Earth to be living and holy; thus they referred to their homeland as “La Querencia de la Tier-ra,” Love of the Land. This sacredness connotes an intrinsic right of the land to exist without defilement.

Section 4-8. Rights are Self-Executing: All rights delineated and secured by this ordinance shall be self-executing and these rights shall be enforceable against both public and private actors, and shall not require implementing legislation for their enforceability.

Section 4.9. Exemption: Nothing in this ordinance shall be construed in such a manner as to impact the water rights of acequias, Mutual Domestic Water Consumers Associations or land grant, or to affect or color any negotiations regarding water rights, distribution or usage between these political subdivisions and the County of Mora.

Section 5. Statements of Law Prohibitions Necessary to Secure Bill of Rights’ Protections

Section 5.1: It shall be unlawful for any corporation to engage in the extraction of oil, natural gas, or other hydrocarbons within Mora County.

Section 5.2: It shall be unlawful for any corporation to engage in the extraction of water from any surface or subsurface source within Mora County for use in the extraction of subsurface oil, natural gas, or other hydrocarbons, or for any director, officer, owner, or manager of a corporation to use a corporation to extract water from any surface or subsurface source, within Mora County, for use in the extraction of subsurface oil or natural gas or other hydrocarbons. It shall be unlawful for a corporation to import water or any other substance, including but not limited to, propane, sand, and other substances used in the extraction of oil, natural gas, or other hydrocarbons, into Mora County for use in the extraction of subsurface oil, natural gas, or other hydrocarbons; or for any director, officer, owner, or manager of a corporation to do so.

Section 5.8: It shall be unlawful for any corporation, or any director, officer, owner, or manager of a corporation to use a corporation to deposit, store, transport or process waste water, “produced” water, “frack” water, brine or other materials, chemicals or by-products used in the extraction of oil, natural gas, or other hydrocarbons, into the land, air or waters within Mora County.

Section 5.4: It shall be unlawful for any corporation, or any director, officer, owner, or manager of a corporation to use a corporation to construct or maintain infrastructure related to the extraction of oil, natural gas, or other hydrocarbons within Mora County. “Infrastructure” shall include, but not be limited to, pipelines or other vehicles of conveyance of oil, natural gas, or other hydrocarbons, and any ponds or other containments used for waste-water, “frack” water, or other materials used during the process of oil, gas, or other hydrocarbon extraction.

Section 5.5: Corporations in violation of the prohibitions enacted by this ordinance, or seeking to engage in activities prohibited by this ordinance, shall not have the rights of “persons” afforded by the United States and New Mexico Constitutions, nor shall those corporations be afforded rights under the 1st or 5th amendments to the United States Constitution or corresponding sections of the New Mexico Constitution, rior shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the New Mexico Constitution.

Section 5.6: Individuals or corporations in violation of the prohibitions enacted by this ordinance, or seeking to engage in activities prohibited by this ordinance, shall not possess the authority or power to enforce State or federal preemptive law against the people of Mora County, • or to challenge or overturn County ordinances adopted by the Mora County Commission, when that enforcement or challenge interferes with the rights asserted by this ordinance or interferes with the authority of the county to protect the health, safety, and welfare of its residents.

Section 5.7: No permit, license, privilege or charter issued by any state or federal agency, Commission or Board to any person or any corporation operating under a State charter, or any director, officer, owner, or manager of a corporation operating under a State charter, which would violate the prohibitions of this Ordinance or deprive any County resident(s), natural community, or ecosystem of any rights, privileges, or immunities secured by this Ordinance, the Treaty of Guadalupe Hildalgo, the New Mexico Constitution, the United States Constitution, or other' laws, shall be deemed valid within Mora County.

Section 5.8: The New Mexico Constitution’s Bill of Rights, and the United States Constitution’s Bill of Rights and amendments thereto, shall be recognized as preemptive law within the County of Mora only to the extent that their interpretation and application are not inconsistent with the provisions of this Ordinance regarding the powers and “rights” of corporations, and to the extent that they do not otherwise elevate property interests over rights secured by this Ordinance.

Section 5.9: Laws adopted by the legislature of New Mexico and rules adopted by any State agency, and laws adopted by the United States Congress and rules adopted by any federal agency, shall be recognized as preemptive law within the County of Mora only if those laws and rules both expressly preempt County ordinances and charters, and provide greater protections for the health, safety, and welfare of the people of Mora County than County ordinances and charters.

Section 6. Strict Liability

Section 6.1: Persons using corporations to engage in the extraction of oil, natural gas or other hydrocarbons in a neighboring municipality shall be strictly liable for all harms' caused to the health, safety, and welfare of the residents of Mora County from those activities, and for all harms caused to ecosystems and natural communities within Mora County.

Section 7. Future Lost Proñts

Section 7.1: Within the County of Mora, corporate claims to “future lost profits” shall not be considered property interests under the law, and thus, shall not be recoverable by corporations seeking those damages.

Section 8. Enforcement

Section 8.1: Any violation of any provision of this Ordinance shall be considered a criminal offense, punishable by maximum penalties and imprisonment as authorized by applicable New Mexico law. Each instance of a violation of the provisions of this Ordinance shall be treated as a separate offense subject to penalties authorized by applicable New Mexico law.

Section 8.2: Mora County may enforce this Ordinance through an action brought in any court of competent jurisdiction. In such an action, Mora County shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees, in addition to damages caused by the violation of this ordinance.

Section 8.8: Any County resident shall have the authority to enforce this Ordinance through an action brought in a court of competent jurisdiction. In such an action, the resident shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees.

Section 8.b: Any person or municipality who brings an action to secure or protect the rights of natural communities or ecosystems against oil and gas extraction within Mora County shall bring that action in the name of the natural community or ecosystem in a court of competent jurisdiction. Damages shall be measured by the cost of restoring the natural community or ecosystem to its pre-damaged state, and shall be paid to the County of. Mora or other applicable governmental entity, to be used exclusively for the full and complete restoration of the natural community or ecosystem.

Section 8.5. Reinstatement of Moratorium on Oil and Gas Extraction: In the event that this ordinance is overturned or nullified, for any reason, a moratorium on the extraction of oil and gas within the County of Mora shall become effective on the date that this ordinance becomes inactive. That temporary moratorium shall have a duration of no more than six months, during which the Board of County Commissioners shall adopt another ordinance which permanently bans hydrocarbon extraction within the County of Mora.

Section 9. Effective Date and Existing State Permit Holders

This Ordinance shall be effective five (5) days after the date of its enactment, at which point the Ordinance shall apply to any and all extractions of oil, natural gas, or other hydrocarbons in Mora County regardless of the date of any applicable governmental permits.

Section 10. County Commission Action and Voter Referenda to Repeal Ordinance

The foundation for the making , and adoption of this law is the people’s fundamental and inalienable right to govern themselves, and thereby secure their rights to life, liberty, and the pursuit of happiness. Accordingly, this Ordinance automatically suspends the operating rules of the Mora County Commission when the question of repealing this Ordinance is introduced. Repeal of this ordinance shall require both a unanimous vote of the Mora County Commissioners voting in favor of the repeal of the' ordinance, and a voter referenda following that vote which shall make the repeal effective only if two thirds of the Mora' County electorate vote to repeal the ordinance.

Section 11. People’s Right to Self-Government — Preemption

Any attempts to use other units and levels of government to preempt, amend, alter, or overturn this Ordinance, or parts of this Ordinance, shall require the County Commission to hold public meetings that explore the adoption of other measures that expand local control and the ability of residents to protect their fundamental and inalienable right to self-government. Such consideration may include actions to separate the County from the other levels of government used to preempt, amend, alter, or overturn the provisions of this Ordinance or other levels of government used to intimidate the people of Mora County or their elected officials.

Section 12. New Mexico Constitutional Changes

Through the adoption of this local law, the people of Mora County call for amendment of the New Mexico Constitution to explicitly secure a community right to local self-government that cannot be preempted by the State if the community’s laws enforce rights or standards more protéctive of the health, safety, and welfare of the people of Mora County and the natural environment, communities, and ecosystems. The people of Mora County also call for a state constitutional amendment that explicitly elevates community rights above corporate property rights, and that recognize the rights of nature enforceable by the residents of a community.

Section 13. Severability

The provisions of this Ordinance are severable. If any court of competent jurisdiction decides that any section, clause, sentence, part, or provision of this Ordinance is illegal, invalid, or' unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the Ordinance. The Mora County Commission hereby declares that in the event of such a decision, and the determination that the court’s ruling is legitimate, it would have enacted this Ordinance even without the section, clause, sentence, part, or provision that the court decides is illegal, invalid, or unconstitutional.

Section 14. Repealer

All inconsistent provisions of prior Ordinances adopted by the Mora County Commission are hereby repealed, but only to the extent necessary to remedy the inconsistency.

Ordinance at 1-6 (alterations in original)(bold in original). See Answer ¶ 1, at 1 (admitted that the Ordinance is attached to the Complaint).

PROCEDURAL BACKGROUND

On January 10, 2014, SWEPI, LP filed suit against Mora County, the Mora County Commissioners, and the Individual Commissioners, bringing a number of federal and state claims. See Complaint at 1. SWEPI, LP seeks both injunctive and compensatory relief. See Complaint ¶¶ 142-52, at 27-28. Specifically, SWEPI, LP seeks a declaration that the Ordinance is unconstitutional and that it violates state law, and seeks an entry of judgment that permanently enjoins Mora County from enforcing the Ordinance. See Complaint ¶ 2, at 2. SWEPI, LP alleges nine claims of relief in the Complaint: (i) violation of the Supremacy Clause, U.S. Const, art. 6, cl. 2; (ii) violation of the Equal Protection Clause, U.S. Const, amend. XIV, § 1; (iii) violation of the Dormant Commerce Clause, U.S. Const, art. 1, § 8, cl. 3; (iv) substantive due-process violation for taking arbitrary action; (v) substantive due-process violation for lacking a compelling or legitimate interest; (vi) ultra vires legislation; (vii) conflict preemption; (viii) violations First and Fourth Amendments to the Constitution of the United States of America; and (ix) violations of the Fifth and Fourteenth Amendments for an inverse condemnation. See Complaint ¶¶ 52-141, at 13-26. SWEPI, LP also attached to the Complaint the Ordinance, an oil-and-gas lease, and part of an oil-and-gas memorandum. See Complaint ¶ 1, at 1; id. ¶¶ 4-5, at 2-3.

1. The Motion.

On May 13, 2014, SWEPI, LP filed the Motion, asking to Court to grant it judgment on its first, second, fourth, fifth, sixth, seventh, eighth, and ninth claims for relief. See Motion at 1. SWEPI, LP argues that the Court should declare the Ordinance unconstitutional, because it “legalizes invidious discrimination against corporations,” and because it “purports to strip corporations of their rights” that the First, Fifth, and Fourteenth Amendments guarantee. Motion at 1. It asserts that the Ordinance, “[b]y its express terms, ... contravenes over two hundred years of Supreme Court precedent squarely establishing that corporations have protected constitutional rights,” which “may not simply be cast aside out of animosity or disdain toward the corporate form.” Motion at 1.

SWEPI, LP argues that the Ordinance violates the Supremacy Clause by stating that its provisions take precedence over conflicting or contrary federal law. See Motion at 2. SWEPI, LP contends that the Ordinance violates the Due Process Clause and the Equal Protection Clause by depriving SWEPI, LP of its property rights for an arbitrary reason: SWEPI, LP’s status as an incorporated entity. See Motion at 2. SWEPI, LP argues that the Ordinance takes SWEPI, LP’s property without just compensation by completely eliminating all economic value from its property in Mora County. See Motion at 2. SWEPI, LP also argues that the Ordinance eviscerates SWEPI, LP’s constitutional rights under the First and Fifth Amendments. See Motion at 2. It maintains that the Ordinance is ultra vires and violates New Mexico state law by imposing local zoning regulations on New Mexico state lands. See Motion at 2. SWEPI, LP asserts that the Ordinance also violates state law by “dictating the use and effective abandonment of State oil and gas minerals that have been leased by the State to SWEPI.” Motion at 2. Finally, SWEPI, LP argues that the Ordinance violates SWEPI, LP’s property and contract rights that the New Mexico Constitution protects by depriving SWEPI, LP of its “right to explore for and extract hydrocarbons pursuant to its fee and State leases.” Motion at 2.

SWEPI, LP first argues that the Ordinance violates the federal Constitution by invalidating protections that federal law affords in “a thinly veiled threat of secession from the United States.” Motion at 3. SWEPI, LP asserts that a local law is invalid under the Supremacy Clause if the law “ ‘conflicts with federal law or stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.’ ” Motion at 3 (quoting Lawrence Cnty. v. Lead-Deadwood Sch. Dist., 469 U.S. 256, 260, 105 S.Ct. 695, 83 L.Ed.2d 635 (1985)). It argues that states lack the authority to nullify federal rights that they think are inconsistent with their local policies. See Motion at 3-4 (citing Haywood v. Drown, 556 U.S. 729, 736, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009)). SWEPI, LP contends that a party can bring a claim under the Supremacy Clause even if 42 U.S.C. § 1983 does not provide a right of action for Supremacy Clause violations. See Motion at 4 n. 4. SWEPI, LP further contends that the Ordinance unlawfully attempts to establish that its provisions take priority over federal law. See Motion at 4. SWEPI, LP asserts that, according to the Ordinance, if there is a conflict between the Ordinance and the Constitution, the Ordinance trumps the Constitution, which, according to SWEPI, LP, “violates the very essence of the Supremacy Clause.” Motion at 4. It contends that the Ordinance explicitly divests corporations of their constitutional rights and that the “unconstitutionality of such an enactment is beyond debate.” Motion at 4 (citing Julian v. Hanna, 732 F.3d 842, 847-48 (7th Cir.2013)). SWEPI, LP asserts that the Ordinance also attempts to close the courthouse doors to corporations that the Ordinance aggrieves, which, SWEPI, LP argues, is unconstitutional. See Motion at 4-5 (citing Ordinance § 5.6, at 4-5).

SWEPI, LP also argues that the Ordinance violates the Equal Protection Clause. See Motion at 5. It contends that the Supreme Court of the United States of America has held that corporations are persons “within the meaning of the Equal Protection Clause and are entitled to its protections.” Motion at 5 (citing Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 n. 9, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985); Covington & Lexington Turnpike Rd. Co. v. Sandford, 164 U.S. 578, 592, 17 S.Ct. 198, 41 L.Ed. 560 (1896)). SWEPI, LP maintains that the Equal Protection Clause’s purpose is to protect “ ‘every person within the State’s jurisdiction against intentional and arbitrary discrimination,’ ” Motion at 6 (quoting Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)) (citing Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 1014, 105 S.Ct. 1373, 84 L.Ed.2d 392 (1985)), and that the applicable test in this case is “whether ‘there is a rational relationship between the disparity of treatment and some legitimate governmental purpose,’ ” Motion at 6 (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)).

SWEPI, LP asserts that a state “ ‘may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.’ ” Motion at 6 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)) (citing Romer v. Evans, 517 U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)). SWEPI, LP argues that “a state-law motivated by animus and directed at a politically unpopular group cannot survive even a rational relationship test.” Motion at 6 (citing United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)). It asserts that the Ordinance violates the Equal Protection Clause by “prohibiting corporations, but not individuals, from engaging in virtually any activity related to oil and gas exploration or production.” Motion at 7. SWEPI, LP argues that that this distinction is invidious, bears no rational relationship to any legitimate state interest, and is motivated “by nothing more than a disdain for the corporate form.” Motion at 7.

SWEPI, LP contends that the Supreme Court has held that disparate treatment between corporations and individuals bears no rational relationship to a legitimate state interest and, thus, violates the Equal Protection Clause. See Motion at 7. SWEPI, LP asserts that the Supreme Court, in Frost v. Corporation Commission of Oklahoma, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929), held that a law cannot arbitrarily favor a corporation over an individual or an individual over a corporation. See Motion at 7-8. SWEPI, LP contends that the only context in which the Supreme Court has upheld disparate treatment between corporations and individuals is in the taxation context, which SWEPI, LP contends is a distinct area of law and that the disparate treatment cannot be expanded outside the taxation context. See Motion at 8 n. 4. It argues that the Ordinance forbids corporations from engaging in conduct in which individuals or unincorporated associations may engage. See Motion at 8. This disparate treatment, SWEPI, LP asserts, bears no rational relationship to a legitimate state interest. See Motion at 8.

SWEPI, LP maintains that, if a state law is based on an invidious classification or is motivated by a desire to harm a politically unpopular group, the law violates the Equal Protection Clause. See Motion at 8. It contends that the Ordinance’s disparate treatment between corporations and individuals is motivated “by a gross antipathy toward the corporate form,” and that it is based on a discriminatory purpose against corporations. Motion at 8-9. SWEPI, LP argues that the Ordinance also discriminates against people associated with corporations by applying to directors, officers, owners, and managers of corporations. See Motion at 9. It argues that the Ordinance does not have a legitimate purpose, but that it is “a vindictive effort to disempower and punish corporations and anyone who is in' any way affiliated with an incorporated entity.” Motion at 9. SWEPI, LP maintains that the Ordinance’s animus against the corporate form makes clear that it does not have, in violation of the Equal Protection Clause, a rational relationship to a legitimate governmental interest. See Motion at 10.

SWEPI, LP argues that, because it seeks to engage in activities which the Ordinance prohibits, the Ordinance purports to strip it of its First and Fourteenth Amendment rights. See Motion at 10-11 (citing Ordinance § 5.5, at 4 (“Corporations ... seeking to engage in activities prohibited by this ordinance, shall not ... be afforded rights under the 1st or 5th amendments to the United States Constitution. ...”)). SWEPI, LP contends that, by purporting to strip it of its fundamental rights, “the Ordinance is plainly unconstitutional.” Motion at 11. It asserts that the Supreme Court has held that First Amendment protections extend to corporations. See Motion at 11 (citing Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010);, Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1135 (10th Cir.2013), aff'd sub nom., Burwell v. Hobby Lobby Stores, Inc., - U.S. -, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014)). SWEPI, LP argues that the Ordinance is analogous to the Los Angeles International Airport (“LAX”) resolution that the Supreme Court invalidated in Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). See Motion at 11. It contends that the Board of. Airport Commissioners for the City of Los Angeles; California, adopted a resolution banning all First Amendment activity in LAX’s central terminal. Sée Motion at 11. SWEPI, LP argues that the Supreme Court found the resolution unconstitutional, because no conceivable governmental interest could justify an absolute ban on speech. See Motion at 11. It contends that the Ordinance is more egregious than the LAX resolution, which the Supreme Court invalidated, because the resolution applied only to the central LAX terminal, which could be a viewed as a non-public forum, while the Ordinance applies to all of Mora County, including places that are public forums, or that have traditionally been devoted to assembly and debate. See Motion at 11-12 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). SWEPI, LP further contends that the Ordinance is unconstitutional because it represents a selective ban on First and Fourteenth Amendment rights by applying only to those in violation of the Ordinance, or to those who seek to engage in activities that the Ordinance prohibits. See Motion at 12. It argues that this selective ban constitutes a viewpoint-based restriction to silence those who oppose the Ordinance. See Motion at 12. SWEPI, LP argues that the Ordinance also violates the First Amendment by prohibiting corporations from challenging the Ordinance. See Motion at 12 n. 5.

SWEPI, LP argues that the Ordinance effects a regulatory taking of property without just compensation. See Motion at 12. It contends that a regulatory taking can occur if “ ‘government regulation of private property’ ” is “ ‘so onerous that its effect is tantamount to a direct appropriation or ouster.’” Motion at 13 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)). SWEPI, LP argues that a plaintiff can prove a regulatory taking by showing that “a regulation ‘deprives land of all economically beneficial use.’ ” Motion at 13 (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). It asserts that the Supreme Court’s decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), conclusively demonstrates that the Ordinance constitutes a regulatory taking. See Motion at 13. There, SWEPI, LP contends, a mining company owned the mineral rights to a tract of land but not the surface rights. See Motion at 13 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. at 412, 43 S.Ct. 158). SWEPI, LP notes that the state passed a law prohibiting the mining of coal in a way that would 'cause the subsidence of structures used for human habitation. See Motion at 13-14 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. at 412-13, 43 S.Ct. 158). SWEPI, LP asserts that the Supreme Court held that the state law constituted a compensable taking, because it abolished a valuable estate in land, and because it made it commercially impracticable to mine coal, which had the same effect as appropriating or destroying the company’s interest in the coal. See Motion at 14. Similarly, SWEPI, LP asserts that New Mexico law recognizes a mineral estate as an interest in real property that is separate and distinct from the surface estate. See Motion at 14 (citing Johnson v. Gray, 1966-NMSC-020, ¶ 5, 75 N.M. 726, 410 P.2d 948, 950). SWEPI, LP argues that the Ordinance is more egregious than the law in Pennsylvania Coal Co. v. Mahon, because the Ordinance bans all extraction of hydrocarbons in Mora County, when undertaken by a corporation, while the Pennsylvania law merely limited the scope of coal mining to protect surface structures. See Motion at 15. It contends that this blanket prohibition makes it commercially impracticable for it to obtain any economic benefit from its mineral rights. See Motion at 15 (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. at 414, 43 S.Ct. 158 (“ ‘For practical purposes, the right to coal consists of the right to mine it.’ ” (quoting Commonwealth ex rel. Keator v. Clearview Coal Co., 256 Pa. 328, 100 A. 820, 820 (1917)))).

SWEPI, LP contends that the Ordinance also violates its substantive due-process rights. See Motion at 15. It argues that substantive due process prohibits a state from depriving property for an arbitrary reason. See Motion at 15 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000)). SWEPI, LP asserts that its oil- and-gas leases are property interests that the Due Process Clause protects. See Motion at 16 (citing McLaurin v. Shell W.E. & P., Inc., 778 F.2d 235 (5th Cir.1985)). It contends that, in violation of its substantive due-process rights, the Ordinance arbitrarily deprives it of its property interest, because of its status as a corporation. See Motion at 16. SWEPI, LP argues that, by prohibiting hydrocarbon extraction and exploration on state lands, the Ordinance impedes the State of New Mexico’s interest for natural resource developers to develop natural resources without creating waste and impedes the authority of the Commissioner of Public Lands (“Land Commissioner”) over state lands. See Motion at 16-17. (citing Burguete v. Del Curto, 1945-NMSC-025, ¶ 11, 49 N.M. 292, 163 P.2d 257, 259; Jensen v. State Highway Comm’n, 1982-NM-031 ¶ 10, 97 N.M. 630, 642 P.2d 1089, 1090). SWEPI, LP asserts that the Court must declare the Ordinance invalid, because it contradicts state law, and because of the arbitrary fashion in which it deprives SWEPI, LP of property. See Motion at 18.

SWEPI, LP argues that the Ordinance violates state law by enacting zoning regulations over state land. See Motion at 18. It contends that state statutes created Mora County and that Mora County possesses only those “powers expressly granted to it by the Legislature together with those necessarily implied to implement express powers.” Motion at 18 (citing Board of Cnty. Comm’rs v. Greacen, 2000-NMSC-016, ¶¶ 7-8, 129 N.M. 177, 3 P.3d 672, 675-76). SWEPI, LP argues that, while the New Mexico Legislature has granted counties the authority to pass some zoning ordinances, the New Mexico courts have held that a county cannot enforce its ordinances on lands that the State of New Mexico owns. See Motion at 18-19 (citing Cnty. of Santa Fe v. Milagro Wireless, LLC, 2001-NMCA-070, ¶ 7, 130 N.M. 771, 32 P.3d 214, 216). It asserts that, because the Ordinance prohibits all drilling in Mora County — without making an exception for state land — the Ordinance is ultra vires and invalid. See Motion at 19. SWEPI, LP further argues that, even if the Ordinance did not apply to state lands, because the Ordinance prohibits any activity related to the production of hydrocarbons, the Ordinance would still have the effect of prohibiting the extraction of hydrocarbons on state lands, because SWEPI, LP would need to establish and maintain the necessary infrastructure within Mora County to extract hydrocarbons on state land. See Motion at 19-20.

SWEPI, LP argues that, because the Ordinance undermines state law and the State’s interests, it is unenforceable. See Motion at 20 (citing Chapman v. Luna, 1984-NMSC-029, 101 N.M. 59, 678 P.2d 687). It contends that, because of the New Mexico Oil and Gas Act, N.M. Stat. Ann. § 70-2-1 to -38, the Attorney General of New Mexico has opined that counties cannot regulate oil-and-gas activities. See Motion at 20 (citing N.M. Att’y Gen. Op. 86-2, 1986 WL 220334 (1986)). There, SWEPI, LP argues, the New Mexico Attorney General, Paul Bardacke, concluded that the New Mexico Oil Conservation Division occupies the entire field of oil-and-gas regulation, preempting any county ordinances that regulates or affects oil-and-gas production. See Motion at 20-21. It further argues that, even if the Oil and Gas Act did not completely occupy the oil- and-gas regulation field, the Ordinance would be invalid, because it prohibits conduct that state law permits. See Motion at 21 (citing Rancho Lobo, Ltd. v. Devargas, 303 F.3d 1195, 1206 (10th Cir.2002); Inc. Cnty. of Los Alamos v. Montoya, 1989-NMCA-004, 108 N.M. 361, 772 P.2d 891, 895).

Finally, SWEPI, LP argues that the Court must declare the Ordinance, in its entirety, invalid and that no part of the Ordinance is severable from the rest. See Motion at 21. It contends that a law, in which some portions are invalidated, can have its valid portions severed from the invalid ones, when the legislative purpose of the valid portions can be given effect through the remaining portions and where it cannot be shown that the legislature would not have passed the valid portions if it had known that the other portions would be invalidated. See Motion at 22 (citing Bradbury & Stamm Constr. Co. v. Bureau of Revenue, 1962-NMSC-078, ¶ 7, 70 N.M. 226, 372 P.2d 808, 811). SWEPI, LP asserts that the Ordinance’s purpose is to divest corporations of their rights and privileges by prohibiting corporations from engaging in activities that the Ordinance prohibits. See Motion at 22. It argues that, once the Court invalidates this prohibition, the Ordinance’s purpose cannot be given effect. See Motion at 22. SWEPI, LP maintains that the Ordinance’s sever-ability clause does not automatically make the Ordinance severable, because the clause merely provides a rule of construction, which can be considered, but is not binding. See Motion at 22 (citing Bradbury & Stamm Const. Co. v. Bureau of Revenue, 1962-NMSC-078, ¶ 9, 70 N.M. 226, 372 P.2d 808). It further argues that the fact that the Ordinance suggests that Mora County would' refuse to recognize the legitimacy of a court order invalidating the Ordinance undercuts the severability clause’s effect. See Motion at 23.

2. The Response.

The Defendants responded to the Motion on June 12, 2014. See Defendants’ Answer to Plaintiffs Motion for Partial Judgment on the Pleadings, filed June 12, 2014 (Doc. 33)(“Response”). They argue that SWEPI, LP’s legal theories are flawed, that it has not shown that Mora County lacked a rational basis for passing the Ordinance, and that they have established factual issues that require discovery. See Response at 1-2. The Defendants provide a summary of how the Ordinance came into being. See Response at 2-3. They assert that, in 2011, Mora County residents began to discuss ways to protect the environment and water from oil-and-gas extraction activities, including hydraulic fracturing (“fracking”). See Motion at 2. The Defendants contend that Mora County residents decided to take significant measures to safeguard their water, environment, and economy, and that the interested residents met weekly to draft and debate about the Ordinance until it was adopted on April 29, 2013. See Response at 2.

The Defendants argue that they have raised a number of affirmative defenses in the Answer, which, if proven, would defeat SWEPI, LP’s claims. See Response at 3. Specifically, they contend that SWEPI, LP lacks standing and that the case is not ripe for adjudication. See Response at 3. The Defendants also contend that they have asserted- a number of factual disputes in the Answer, including that SWEPI, LP does not possess valid leases that authorize it to extract hydrocarbons from Mora County, that SWEPI, LP does not intend to engage in activities related to the extraction of hydrocarbons in Mora County, that Mora County had a rational basis to enact the Ordinance, and that the Ordinance is necessary to protect Mora County residents’ air, water, land, health, welfare, and safety. See Response at 3. They argue that, because they have asserted affirmative defenses and because they have asserted factual disputes in the Answer, the Court should deny the Motion. See Response at 3-4.

The Defendants argue that, because the Court must accept all facts that the non-moving party pled and grant all inferences in the Defendants’ favor, the Court must presume that SWEPI, LP does not have standing, that the case is not ripe, and that the affirmative defenses asserted in the Answer are viable. See Response at 5 (citing Park Univ. Enter., Inc. v. Am. Cas. Co. of Reading, Pa., 442 F.3d 1239 (10th Cir.2006), abrogation recognized in Magnus, Inc. v. Diamond State Ins. Co., 545 Fed.Appx. 750 (10th Cir.2013) (unpublished); Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir.1989)). They contend that the Court must determine issues of standing before considering the case’s merits. See Response at 6 (citing Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir.2004)). To establish standing, the Defendants assert, a plaintiff must suffer a present or imminent injury, rather than a possible or probable future injury. See Response at 7. They argue that SWEPI, LP cannot rely on general allegations of an injury at a dispositive stage of a case, but must instead provide evidence to demonstrate standing. See Response at 7 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

The Defendants argue that SWEPI, LP must allege that it has valuable property to prove a loss, but that SWEPI, LP has not alleged that its leases have value. See Response at 7. They also contend that they have denied SWEPI, LP’s allegations that it is the holder of a valid oil-and-gas lease, and that it is seeking to or is prepared to engage in activities that the Ordinance prohibits. See Response at 7 (citing Answer ¶¶ 4-7, at 2). The Defendants assert that there is a genuine issue of fact whether SWEPI, LP has suffered an injury, and thus has standing, because the Defendants have disputed many of SWEPI, LP’s factual allegations that are necessary to establish standing. See Response at 8. They argue that SWEPI, LP’s sole allegation concerning its property interests in Mora County is that it owns oil-and-gas leases. See Response at 8 (citing Complaint ¶¶ 4-7, at 2-3). They assert that they do not admit:

(1) the existence or legitimacy of the leases or that the leases have value; (2) that Plaintiff obtained the leased mineral rights to explore for and extract hydrocarbons; (3) that Plaintiffs alleged property rights are valueless without the right to explore for and extract hydrocarbons; (4) that Plaintiff presently seeks to or is prepared to exercise its rights pursuant to the leases; (5) that there is a credible threat of prosecution were Plaintiff to exercise its rights; or (6) that but for the Ordinance, Plaintiff would engage in oil and gas development activities on the property covered by the leases.

Response at 8 (citing Answer ¶¶ 4-7, at 2). The Defendants contend that the Court cannot assume that the leases provide SWEPI, LP with any rights, because that assumption would resolve an issue in the moving party’s favor, which is contrary to the judgment on the pleadings standard. See Response at 8-9. They argue that, while an allegation that a plaintiff has a property interest may satisfy the pleading standard, it is insufficient to meet the standard for judgment on the pleadings, and that the Defendants’ denial of SWEPI, LP’s “factual allegations is sufficient to establish numerous issues of material fact as to whether Plaintiff has standing and to justify denial of Plaintiffs Motion.” Response at 9.

The Defendants argue that SWEPI, LP’s corporate status is insufficient to establish standing. See Response at 9. They contend that SWEPI, LP must have more than “a generalized grievance” and that it cannot rely solely on allegations that the Ordinance discriminates against corporations to establish standing. Response at 9 (citing Harris v. McRae, 448 U.S. 297, 320, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)). The Defendants maintain that SWEPI, LP must assert a concrete and particularized harm that the Ordinance causes. See Response at 9. The Defendants argue that SWEPI, LP’s allegations that it possesses oil-and-gas leases, and that it would seek to extract hydrocarbons if it were not for the Ordinance, are SWEPI, LP’s attempt to create this concrete and particularized harm, but that the Defendants have denied those allegations. See Response at 9-10 (citing Answer ¶¶ 4-7, at 2). They contend that, because they denied those allegations, the Court cannot consider the allegations as true and the pleadings do not conclusively establish standing. See Response at 10.

The Defendants assert that SWEPI, LP’s standing is speculative, because it initiated the lawsuit before any enforcement had occurred under the Ordinance. See Response at 10. They argue that SWEPI, LP alleges only that it desires to engage in activities that the Ordinance prohibits. See Response at 10. They contend that SWEPI, LP’s position in this case is comparable to that of the plaintiff in Kegler v. United States Department of Justice, 436 F.Supp.2d 1204 (D.Wyo.2006) (Johnson, J.). See Response at 10. The Defendants argue that, there, the plaintiff challenged the Gun Control Act of 1968, 18 U.S.C. §§ 921 to 930 (“GCA”), because the GCA prohibited persons convicted of a domestic violence misdemeanor from possessing a firearm. Response at 10. They contend that the Honorable Alan B. Johnson, United States District Judge for the District of Wyoming, found that, without any threat of investigation, arrest, or prosecution, the GCA, by itself, was insufficient for the plaintiff to establish standing. See Response at 10. The Defendants assert that SWEPI, LP had not made definite plans to engage in hydrocarbon extraction or exploration, and there is no threat or history of investigation or prosecution. See Response at 10. They argue that SWEPI, LP’s fears are based on the content of the Ordinance rather than an injury in fact. See Response at 10-11.

The Defendants contend that there are genuine issues of material fact as whether SWEPI, LP’s claims are ripe. See Response at 11. They assert that ripeness concerns whether a harm has sufficiently matured to warrant judicial intervention, and that a case may not be ripe if it involves uncertain or contingent events that may not occur. See Response at 11 (citing Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995)). The Defendants argue that, even if SWEPI, LP’s leases are valid, the Court cannot accept its allegation that it is prepared to explore for and extract hydrocarbons, because the Defendants denied those allegations. See Response at 11-12 (citing Answer ¶¶ 6-9, at 2-3). They contend that SWEPI, LP’s leases that are attached to the Complaint are dated April 1, 2010, and August 1, 2010, and that SWEPI, LP has not alleged that it tried to act on the leases between the time that it entered the leases and the time that it filed the Complaint. See Response at 12. The Defendants maintain that SWEPI, LP’s failure to act on the leases undermines its allegation that it is ready and willing to extract hydrocarbons in Mora County if not for the Ordinance. See Response at 12. They contend that, because the leases are for an initial five-year term, and because SWEPI, LP has not acted on the leases before filing the Complaint, it allowed more than half of the leases’ initial terms to expire. S