From a Tiny Town, A Cautionary Tale for Environmental Advocates

From a Tiny Town, A Cautionary Tale for Environmental Advocates

A mountain range near Mesquite, N.M. H Dragon

By any stretch of the imagination, the town of Mesquite, New Mexico is small. With only about 1,500 residents, it barely registers on maps and has just a tiny fraction of the population of the neighboring city, Las Cruces, which sits within a couple dozen miles of the U.S.-Mexico border. Commerce is slow in Mesquite; there’s a post office, a bakery and a John Deere vendor. There’s a Helena Chemical Company warehouse. But a recent jury verdict may increase the small town’s profile. In April 2010, Helena Chemical Company won a defamation suit against community organizer and social worker Arturo Uribe. Some law experts and environmental advocates worry that the verdict will intimidate individuals or groups who use the public forum to air grievances against large companies.

The jury, from the Third Judicial District Court in Las Cruces, awarded Helena $1 in actual damages and $75,000 in punitive damages. The defamation charges included Uribe’s use of unsubstantiated imagery to represent Helena’s operations, and a comment he made to the local press. The jury also agreed that Uribe had harassed employees by following them with a video camera, and had interfered with Helena’s ability to communicate with the public about the nature of its operations.

“It was only without interference from Mr. Uribe’s pattern of lies that we were able to discuss the true nature of our operations,” said Louis Rodrigue, VP of the Southern Business Unit for Helena, in a press release about the verdict. “We had the opportunity to provide factual information to a jury in open court and they agreed that Mr. Uribe has been spreading falsehoods about our operations and injured our reputation. The truth is Helena is not adversely impacting air quality, drinking water quality or the health of the citizens of Mesquite.”

Headquartered in Tennessee with branches nationally and internationally, Helena Chemical Company distributes chemicals for agricultural, turf, aquatic and forestry markets. Its parent company, Marubeni, is based in Japan. The company’s Mesquite facility, which employs 40 people, stores and sells fertilizers and other crop products, including pesticides, to area farmers and ranchers. Maribel Ferrer, a spokesperson for Helena, says that the company is an active participant in the community. Over the years, she explains, the facility has supported the local Mesquite elementary school, Future Farmers of America clubs, youth sports teams and local churches. “In all, Helena’s relationship with the community is strong,” Ferrer said in a recent email.

In the last several years, the New Mexico Environment Department has issued numerous violations against Helena’s Mesquite facility, with penalties nearing $500,000. Those violations include operating without an air quality permit and other air quality violations, failure to report a fertilizer spill within 24 hours, and failure to provide an abatement plan within the Department’s allotted 30 days for contaminative substances, such as chloride, found in the groundwater below the facility.

Mesquite is a working-class, 95-percent-Hispanic community with nearly half its residents living below the poverty line. Only 7.5 percent hold a bachelor’s degree or higher. Arturo Uribe is one of those people. An El Paso native who has been living with his family in Mesquite since 2002, Uribe has roots in the town. His mother was born in the house where he now lives, a home built by his grandfather. And he did not think Helena was good for Mesquite; he wanted them to relocate.

Six years ago, Uribe and a few other residents began to publicly voice concerns about Helena Chemical Company. They believed the company’s Mesquite facility was causing health problems in local residents – especially in young children, including Uribe’s own. Uribe blamed the company for his daughter’s nosebleeds and his son’s severe asthma. The Mesquite facility sits across the street from his home, about 30 yards away. When he found out it was operating without an air quality permit, Uribe began making phone calls to the New Mexico Environment Department.

Uribe (pictured below) would soon form the Mesquite Community Action Committee to address these and other community concerns, such as non-partisan voter registration. His popularity in the local press grew and he was quoted regularly expressing concerns that emissions from the Helena facility were polluting the air. A few years ago, at one of the Mesquite Community Action Committee meetings, while discussing the facility, Uribe showed slide images during a Power Point presentation. One of the slides was a neighbor’s baby that had been born with six fingers. Another slide showed a Texas City, Texas explosion of 1947. The court found that in doing this, Uribe had defamed Helena Chemical, in part because he failed to demonstrate that the images had anything to do with activities at Helena.

“The jury’s decision in this case is a win for the community in Mesquite and we hope it finally gives them the peace of mind that we are not causing health impacts as falsely stated by Mr. Uribe,” Rodrique said after the verdict. “The falsehoods and rumors spread over the years may have affected our reputation, but not our commitment to the community.”

A few months prior to Helena Chemical filing its suit against Arturo Uribe at the end of 2008, a group of 22 local residents, led by Uribe, filed a state lawsuit alleging negligence by Helena. The group alleged that the Mesquite facility’s practice of blending fertilizer is sickening local children, causing asthma, chronic respiratory infections, nosebleeds and severe chronic bronchitis. That lawsuit is still pending. Uribe believed the defamation suit against him was in retaliation for the negligence suit.

In a recent phone conversation, Linda Thomas, Uribe’s lawyer, told Next American City that Helena’s suit was “about shutting Mr. Uribe down, quieting him because he talks to the media, and to the New Mexico Environment Department. How better a way to shut him down than to sue him for defamation, sue his lawyer and sue his wife?” In Helena’s initial filing of the defamation suit, they had included Uribe’s wife, Pam, along with Thomas. A judge dismissed the charges against Pam and Thomas; the suit against Uribe, however, stood.

Prior to Uribe’s trial, Linda Thomas filed several motions to attempt to dismiss Helena’s claims against him. Some of them were dismissed, based on the statute of limitations. Thomas also filed a motion to dismiss Helena’s case on the grounds that it was a frivolous attempt to quiet Uribe. In law terms, suits that silence public criticism are often referred to as “SLAPP suits,” or Strategic Lawsuits Against Public Participation. The suits are typically brought on by large companies or developers against individuals or groups with less financial resources, burdening them with legal fees and, consequently, chilling public claims or complaints. At least 26 states have anti-SLAPP laws, with varying levels of protection. Under New Mexico’s anti-SLAPP statute, however, only statements made in quasi-judicial settings guarantee that one’s speech is fully protected. Those settings did not include the community meetings held by Uribe and the Mesquite Community Action Committee, and so the motion was denied.

In a written statement to the public following the verdict, Uribe said he planned to appeal the verdict, but in the meantime, Thomas has asked the judge to set the punitive damage award aside. “The jury agreed that Helena really wasn’t damaged,” she said, because they awarded just $1 in actual damages. She called the punitive award “grossly excessive,” explaining that appropriate punitive damages, according to the U.S. Supreme Court, are no more than four of five times that of actual damages. The hearing for that motion will take place in mid-June.

A CHILLING EFFECT

Douglas Meiklejohn is founder and executive director of the New Mexico Environmental Law Center. The nonprofit, public-interest law firm provides low-cost legal services for environmental cases, many of them related to environmental justice. Meiklejohn clarified that at time of our phone interview he did not know the specifics of the defamation charges, but he said he still has “very serious concerns about the impact of this verdict.” He said that “against somebody like Arturo Uribe with limited economic means,” the $75,000 in punitive damages “sends quite a clear message to people in similar circumstances that if you speak out, you may very well get punished for it, and severely punished.”

There is another reason Meiklejohn is concerned about the impact of the verdict. He described the $1 actual damage award as “an indication that the jury really didn’t find much in the way of damage to Helena Chemical caused by Uribe.”

“If the jury had said that Uribe damaged the company by preventing Helena from getting contracts,” he said, “then a $75,000 punitive award would be much more understandable.”

Pat Parenteau, a professor of law and senior counsel in the Vermont Law School’s environmental and natural resources clinic, believes that regardless of whether or not Uribe was inaccurate in using the slide images to represent Helena’s Mesquite operation, this verdict has “a chilling effect.”

“There is no doubt about it,” says Parenteau, also the author of Vermont’s anti-SLAPP legislation, adding that, “this kind of judgment, as it gets publicized, is going to cause some people to keep their mouths shut.”

Dr. Robert Bullard (pictured at left) thinks the chilling effect on this case will be temporary. Bullard, who has written several books about how pollution disproportionately impacts underprivileged communities, especially communities of color, has worked in environmental justice for the last 30 years and is possibly the movement’s most preeminent spokesperson, says, “I think that when more people hear about the case, [they will] understand the ramifications of what it means to live fence-line to an industry.”

”As this gets press,” he says, “and when people read it, no matter how much data you place in [the story], there are some people who live in communities next to plants, they will see it as a SLAPP suit. And so, with perception comes reality in a lot of cases like this.”

While Uribe himself has chosen not to speak to the press about the case until after the mid-June hearing, another community organizer, a colleague of Uribe’s, has plenty to say. Tomás Garduño (pictured below), director of Mass Base Organizing for the Southwest Organizing Project (SWOP), believes the defamation suit against Uribe is a clear SLAPP suit. “Helena’s lawsuit was to silence Arturo and to send a message to the community to not stand up against Helena,” he says. SWOP, which was founded 30 years ago, is a community organization that works on social and economic justice issues.

The verdict will have far-reaching ramifications, Garduño says, “discouraging people from being involved in their community and trying to address whatever issues exist… [It implies] that if you try to make your community and your neighborhood a safer place to live and healthier neighborhood, you are going to be sued.” Garduño says SWOP is not going to stop doing their work, “but [the verdict] is definitely going to make our job more difficult.”

Another New Mexico advocacy group, Clearly New Mexico, has also spoken publicly against the defamation suit and the verdict. In posts on its website, the nonprofit, which is a project of the Center for Civic Policy, called the defamation suit a SLAPP suit. After the verdict, it called the jury’s ruling “a stunning blow to free speech.” It went on to say that, “Corporations can afford extended litigation – community activists can’t.” Free speech advocates consider SLAPP suits the most dangerous threat to the First Amendment.

The New Mexico chapter of the American Civil Liberties Union (ACLU) has a very different response to the verdict. Micah McCoy, the chapter’s communications specialist, said the ACLU did not wish to comment. In an email, McCoy explained the organization’s reasoning: “First, defamation suits are especially complicated and to comment on the constitutionality of a specific case, we would have to be very familiar with the details and specifics of the lawsuit,” he said. “Second, the case was ruled upon by a jury, and when a jury rules that someone’s speech constitutes defamation, it can’t technically be considered a violation of free speech since defamation is one of the few legitimate limitations on free speech.”

A VERY PUBLIC RELATIONSHIP

Over the last few years, the New Mexico Environment Department and Helena Chemical became involved in disputes, which were publicized regularly in the local press. In an August 2009 article in the New Mexico Independent, Environment Department Secretary Ron Curry talked about the state agency’s relationship with Helena Chemical. “We’ve had so many problems dealing with [Helena] over the years and they seem so resistant to trying to improve the way they do business,” he told the paper. “They are unique as a company so far as that, in my tenure as secretary, I don’t believe I’ve come across a company that is so unwilling to do the right thing.”

While Secretary Ron Curry declined comment to Next American City on the defamation verdict, in that same article he made a very candid statement about the case, which was then still pending:

“If Helena makes the mistake of assuming that this is a one-man organizing against them or just one group, then they make a huge mistake. This is an entire community that is concerned about the way Helena deals with the community of Mesquite. Every legislator down there… has taken the position that what the community of Mesquite is trying to do is correct.”

In 2004, the Environment Department first inspected Helena’s Mesquite warehouse. Later that year, they issued a Notice of Violation for operating without an air quality permit. The following year, in 2005, the Department fined Helena Chemical $233,777 for failing to obtain the permit; for the 2004/05 air quality violations, based on Helena’s failure to obtain an air quality permit, the Department settled for a penalty of $202,500, which consisted of an $11,500 cash penalty and $191,000 in supplemental environmental projects, or SEPs, as follows: $35,000 for Mesquite Elementary Schools, $65,000 for the Mesquite Fire Station, $66,000 for tank replacement, and $25,000 for a church.

In 2006, the Department issued a compliance order and penalty of $36,000 against Helena for failing to report a liquid fertilizer spill within the required 24-hour period. The spill was 500 gallons. (The Environment Department and Helena settled for a penalty of $30,000 in 2007.) In 2006, the Department also cited 15 air quality violations against Helena. After meeting with Helena, the Department withdrew four of those violations, and then issued a formal enforcement action for 11 violations, assessing a penalty of $279,076. The Department and Helena settled those violations, for a penalty of $208, 331 in 2009. (One of the violations was also dismissed.)

Ironically, just days before Helena Chemical won its case against Arturo Uribe, the Environment Department issued a violation against Helena for refusing to monitor for fluoride, chloride and total dissolved solids (TDS) in the groundwater at its Mesquite facility. The Department said those chemicals were contaminating groundwater below the facility. In a letter that Helena provided to NMPolitics.net in April 2010, the company claimed that the Environment Department “agrees that none of these substances are components of fertilizer or any other products that Helena carries.” Tannis Fox, deputy general counsel for the Department, told Next American City that Helena’s claims were incorrect. She said the Department, “has never agreed that fluoride, chloride, or TDS are not contained in Helena’s products.” A month after the violation notice, Helena agreed to monitor for those substances.

Helena Chemical, as it turns out, was not the only party that had erred on laws; the Environment Department had as well. On April 27, 2010, Helena Chemical won $23,500 in a court dispute against the Department over the state’s open records law. The lawsuit dates back to December 2008 when the company sued the Department over the right to see state documents relating to its Mesquite facility. The Department originally turned over 1,000 pages of documents, but that was only part of what Helena was entitled to view. After the ruling, the state released most of the documents Helena sought, but the judge upheld that some of them were not public record.

BURDEN OF PROOF

Despite the fact that some of Uribe’s claims about Helena were found to constitute defamation by a jury, health concerns are typical in many working-class and poor communities located on what Bullard refers to as the “fence-line” – that is, within proximity to potentially polluting facilities. Bullard says the burden of proof is on the people without financial resources to substantiate their claims. “[Scientific] studies cost a lot of money, and the people who are most likely to be impacted are the ones that don’t have the money to hire lawyers, scientists, epidemiologists, toxicologists and GIS specialists.” He uses the BP oil spill as an example of that lack of resources. “If [a fisherman or shrimper] steps out and says ‘BP ruined the shrimp industry,’ they can be sued for saying that. The company will say, ‘You don’t have any proof. Where is your study?’”

Bullard knows about lawsuits – he himself has been sued over words. For instance, in the early 1990s, Bullard edited an anthology of essays detailing examples of poor communities of color that were disproportionately affected by environmental hazards. The book is Unequal Protection: Environmental Justice in Communities of Color. One of the chapters in the book was written by the Southwest Organizing Project and detailed a group of community organizations in New Mexico that collaborated to protest the location of a medical waste incinerator and solid waste landfill in Sunland Park, a poor community of mostly Mexican immigrants. The book, which was published by Sierra Club Books, would lead to a lawsuit filed by the incinerator/landfill company.

According to Louis Head, one of the defendants in the lawsuit and a former staffer of SWOP, the company, which was known as Nu-Mex at that time, responded to that chapter in Unequal Protection with a suit for inaccurately listing the distance of the Sunland Park incinerator and landfill to the local school, and for some word choices in the chapter. Head says the defendants included himself as well as Bullard, the Southwest Organizing Project, Richard Moore of the Southwest Network for Environmental and Economic Justice, the Sierra Club’s Rio Grande chapter, and Sierra Club Books. That lawsuit would eventually be dropped but not before a few years in court, and that chapter in the book would be revised to reflect the correct distance, and to reflect the language changes.

For environmental advocates, and maybe for some members of the general public, the Sunland Park suit, the recent finding in favor of Helena Chemical and other lawsuits filed by large companies against individuals or groups with limited economic resources, may raise a question: By law, when do unsubstantiated facts equate to defamation, and when don’t they? What margin of error are individuals or groups allowed when publicly challenging a company or entity? And when is a large company justified in bringing a lawsuit against an individual or small organization?

The First Amendment can be tricky, Parenteau explains, because it is not without limitation. But he asserts that it does not require absolute accuracy, or otherwise companies would be suing individuals or groups ad nauseum. “If all you had to do is prove that what somebody said wasn’t true, we wouldn’t have much of a First Amendment left because you can’t always be sure when you protest that you are accurate,” he says. “You should obviously try to be as accurate and careful as you can, but the way the public marketplace of ideas works, you can’t always be 100 percent sure of that.”

“You shouldn’t be held to such a high standard that you are afraid to say anything for fear that somebody will prove that what you said isn’t 100 percent true,” he says.

Helena Chemical’s Mesquite facility manager Jeff Elmore said in a press release following the defamation verdict that, “this case was about stopping malicious lies that have caused harm and we are moving forward. We are confident we can have a healthy dialogue with our community and openly discussing legitimate concerns.” In Arturo Uribe’s prepared statement, he said, “I believe what I’ve said to be true,” continuing, “this won’t destroy me. It should send a chill to non-profits and organizations that deal with environmental justice and those who defend free speech. But it’s not going to scare me from speaking out when I believe something is wrong.”

Photo credits: Robert Bullard photo courtesy of Clark Atlanta University; Tomás Garduño photo courtesy of Southwest Organizing Project; Arturo Uribe photo by Alicia Lueras Maldonado

Hamida Kinge has written about everything from food security to ocean acidification to luxury cell phones. She was a 2009 fellow of the Scripps Howard Institute on the Environment and a 2008/09 reporting fellow of the Metcalf Institute for Marine & Environmental Reporting. She has contributed to Next American City, Grist, Philadelphia City Paper and U.R.B. domestically as well as Europe-based magazines Essential Macau and Straight No Chaser. For the past year, she has been teaching English as a foreign language to international students and business professionals. Hamida has also been a volunteer English tutor for the International Center in New York.

Tags: governanceenvironmentpollutionenvironmental justicelawsuits

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