Saturday, November 26, 2011

Saving the Judiciary from...

This essay originaly appeared as an Op-ed in the Albuquerque Journal on November 20th as "Judiciary should not be above reproach." I'm not sure I like that title because it would be nice if it was.

It has been with tremendous sadness that I have followed the recent developments regarding certain members of the New Mexico State Judiciary in various parts of the state. There have been incidents and allegations that have diminished and tarnished the reputation and standing of this branch of government.

Generally, people understand and expect the legislature to be a partisan and contentious institution. I don’t believe that is a bad thing. Policy concepts that cannot survive the crucible of vigorous debate are probably not valid or worthy of implementation. Sometimes it takes years for policy to be implemented. During that time each of us in the legislature will critically examine the concept, and without hesitation challenge those we feel are invalid. It keeps all of us “on our toes.”

Similarly, the executive branch is constantly criticized and held accountable primarily, but not exclusively, by the opposition party. Again, this is as it should be. This cycle of confrontation and partisanship serves us well and is expected in these two branches.

The judiciary is somehow expected to be above all this, however, and therefore, immune to this contentiousness associated with the failings and shortcomings of mortal man.

Recent events and recent history have shown us that is an unreal expectation. We have seen a state district court judge removed for mishandling a courtroom disruption and grossly violating the rights of scores of people. A recently elected appellate court judge resigned after an egregious drunk driving incident. Another district court judge was found to be cavorting with a prostitute. Finally, we have the distressing, troubling, and sad saga of the district court judges in Las Cruces.

The unproven allegations of misconduct in that case are chilling. Statements that are reportedly recorded display an appalling and gross contempt for the rule of law and proper decorum. These allegations must have a full, fair and open hearing. But sadly, these recent events are not isolated.

Just a few years ago, the chief judge in the largest judicial district was caught possessing cocaine. The question of who provided that cocaine to a sitting judge and what this individual received in payment was never openly asked or answered. A former chief justice of the State Supreme Court attended a “going away party” for a disgraced political figure who had looted the public treasury and had betrayed the public trust. This act appeared to only disturb and dismay those who are NOT licensed to practice law in the state of New Mexico.

I believe that now is the time for a serious review of how the judiciary and legal profession as a whole is held accountable. At this point, everything ultimately rests in the hands of five Supreme Court justices who are immune to, and independent of, meaningful outside accountability (when was the last time a justice lost a retention election?). I believe it is time to re-examine that approach. This is not a suggestion made lightly. The potential for any review of the current system degenerating into a partisan witch hunt is real and must be avoided.

The vast majority of judges I have known have been true noble servants of the people. I have gotten to know the chief justice on a personal level and have found him to be gracious and congenial. I like and respect him.

However, history has demonstrated over and over again that power and accountability exclusively held by a small group leads to catastrophe. The judiciary and the legal profession are too crucial to the success of our state for us to fail to have a system in which independent and outside individuals are the final arbitrators of misconduct.

Many are familiar with James Madison’s observation that, “If men were angels, no government would be necessary,” but few realize the phrase continues with, “If angels were to govern men, neither external nor internal controls on government would be necessary.” While the judiciary in many ways governs society, sadly, like the rest of government, it is not populated with angels. External controls are absolutely vital.

Saturday, October 1, 2011

Confrontation can be a good thing...especially in the Endangered Species Act

A version of this op-ed appeared in the Albuquerque Journal on Thursday Sep 29th

America’s citizens should be able to assume that Endangered Species Act (ESA) listings are based on “best science”, as determined by an altruistic scientist—an honest arbiter. Sadly, this ideal model isn’t how it works in real life.

My background is engineering and law enforcement. When the proposed ESA listing of the Sand Dune Lizard threatened my community’s well-being, I got involved. It was my first in depth involvement with the ESA process. It was interesting and enlightening. More importantly it was disturbing.

Over the last several months I worked with a group of scientists to conduct a detailed review of the proposal to designate the Dunes Sagebrush Lizard as an “endangered species.” On August 15th we presented a 20 page critique of this proposal to Congressman Pearce. The report can be found at the Artesia Chamber of Commerce website:

In the criminal justice system science is critical. Because of its importance, it is getting increased scrutiny. Likewise, the concept of the “wise man” scientist decision-maker, isolated from politics or outside influences, has to be questioned. This is what we did with the proposed listing for the Sand Dune Lizard.

The US Supreme Court has set the standard for examining assertions and claims by scientists. In the case of Melendez-Diaz v Massachusetts the courts established the need for scientists to be subject to confrontation. The court concluded “…Nor is it evident that…’neutral scientific testing’ is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation [emphasis added]” and “…there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology.”

This is not to imply that the researchers working on endangered species issues are not to be trusted. For again the court nailed the point when they put in a footnote that “… we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa….[this] refute[s] the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism.[emphasis added]”.

Confrontation brings clarity, and confrontation is missing in the existing system.

Currently when there is a proposition to designate a species as “endangered” the case is presented in a “proposed rule” prepared by U.S. Fish and Wildlife Service (USFWS) staff. “Proposed rule” is an interesting term because it is in fact an advocacy document much like an affidavit. However, unlike an affidavit no one stands in front of a judge, raises their hand and swears that everything is true. Nor is the author subject to confrontation to explain the basis for their claims and assertions.

In my law enforcement days, I have written many affidavits for search warrants, arrest warrants, and wire taps. I knew I would probably be sitting in a chair answering all kinds of questions. I assure you it is not a pleasant experience but one which ensured accuracy in my statements. We need something like this in the ESA process.

Furthermore, the confrontations must occur before a truly independent decision-maker. It makes no sense for the head of the organization (in this case the Director of the USFWS) which prepares the advocacy document to be the evaluator of the criticisms of that position or its basic validity. The analogy would be, if while I was the Roswell Chief of Police, my detectives had written an affidavit for an arrest warrant and then I, as chief, conducted the preliminary hearing. The inherent conflict is glaring.

Confrontation before an independent decision-maker is at the heart of the American justice system. It is ominously missing from the ESA process and that needs to be corrected because that is how we truly get “best science.”

When decisions are being made that have potentialy grave consequences to communities and the industries that support them, as is the case of the Sand Dune Lizard listing, the science behind the proposal must be held to the highest possible standards. As our review of the Sand Dune Lizard proposed rule discovered, neither best science nor high standards have been met.

Sunday, May 15, 2011

The Sand Dune Lizard Controversy

The following letter was presented to the U.S. Fish and Wildlife Service on April 28th during the public comment portion of the hearing in Roswell, NM. I read this letter during the oral comments and provided a copy to the Fish and Wildlife Service officials. In addition to this letter, I have written an essay which appeared in the Albuquerque Journal on Sunday, May 1, which is available online on Heath Haussamen's New Mexico Politics website,

U.S. Fish and Wildlife Service
Division of Policy and Directives Management
4401 N. Fairfax Drive Suite 222
Arlington, VA 22203.

Re: Sand Dune Lizard (sceloporus arenicolus) Listing as an Endangered Species; FWS-R2-ES-2010-0041

To Whom It May Concern:

In May of 2002 the Center for Biological Diversity and the Chihuahuan Desert Conservation Alliance submitted a petition to have the sand dune lizard listed as a threatened or endangered species under the U.S. Endangered Act.

The petition is based upon studies done by the University of New Mexico (UNM) Department Of Biology in the mid 1990’s. The petition asserts that “the sand dune lizard is at immediate risk of extinction” (petition, summary page). The petition further contends “carefully executed studies found sharp population declines in response to habitat alteration related to vegetation removal and oil and gas development (Snell et al. 1997, Sias and Snell 1998)” (petition, page 6, section V). The petition also claims “given its perilous status and ongoing threats, the sand dune lizard requires immediate protection” (petition, page 14).

The “carefully executed studies” referred to in the petition are summarized in the 1998 report titled The Sand Dune Lizard (sceloporus arenicolus) and Oil and Gas Development in Southeastern New Mexico. Final Report of Field Studies 1995-1997 by Don Sias and Howard L. Snell of the UNM Department of Biology.

The actual studies upon which this petition is based consisted of only 79 days of field work by a mere three observers in 1996, and only 31 days of field work by just four observers in 1997 (Final Report, page 2, line 22). This limited effort fifteen years ago is the sole scientific basis for the petition.

However, even this “final report” contains important data that challenges the assertions of the petition. Among the results not noted in the petition is the fact that the study “found sceloporus arenicolus throughout oil fields at all well densities” (Final Report, page 8, line 11).

The most striking indictment of the flawed petition is found on page 11 of the UNM Report, line 9 through 14, which reads as follows:

More S. arenicolus occurred in well absent areas than in well present areas. In 1996 transects of well absence (n=29) had mean S. arenicolus counts = 10.3 compared to transects of well presence (n=58) with mean S. arenicolus counts = 4.9 (ANOVA on Ln(SaT+2), p = .0002). In 1997 transects of well absence (n = 12) had mean S. arenicolus counts=16.6 compared to transects of well presence (n = 53) with mean S. arenicolus counts =11.6 (Mann Whitney, p - .0350).

The studies plainly show that in a one year time period, the population of the lizard in areas where wells were present increased by a factor of 2.4, a rate that exceeded the increase in the population in areas where wells were absent(a factor of 1.6). This clearly contradicts the claim that oil field operations pose an immediate threat to the continued existence of this species.

The proposition of the Sand Dune Lizard’s imminent demise is contradicted in multiple places in the UNM document, apparently to the consternation of the authors and ignorance of the petitioners. The UNM Biology Department 1998 report states that populations of the lizard continue to exist in the oil field (Final Report, summary page 1, line 36). The report does concede that the lizard continues to occur in areas where there have been oil fields for in excess of 40 years at the time of the report (Final Report, summary page 2, line 29). Again on page 21 of the report, it is recognized that over four decades (now five) of oil field operations had not eliminated the lizard. The report states, “In all of these well dense regions S. arenicolus were still easy to find and abundant in the years we visited these sites (1994-97)[emphasis added]. In some form, these oil fields have existed for several decades. We are therefore left with the impression that, at least in the short term, these populations of lizards are tolerating oil field development, albeit at a reduced level.”

The petition for endangered species listing relies exclusively upon the UNM studies from the mid 1990’s, yet as quoted above, it is clear that the final report on these studies does not in fact support the conclusion that this lizard is at imminent risk of extinction. It has co-existed for over half a century with oil field operations. There is no scientific basis for this listing, and this petition must be rejected.


Dennis J. Kintigh

Friday, March 4, 2011

My Letter from the Legislature

This letter was sent out to many households but not to all. That was done to save funds.

Dear Friends and Neighbors,

The new session of the New Mexico State Legislature has reached the halfway point. What a difference two years and an election make. The House of Representatives is almost evenly divided, and we have a new Governor. This really gives us a chance to move New Mexico in a positive direction.

You have been talking to me about ideas for bills and I got a number of them prepared before the session started. There is a procedure called pre-filing that allows legislators to get the bills prepared, proofread, and submitted. This helps to speed up the legislative process. Among the bills I pre-filed were a constitutional amendment to term limit state legislators (HJM2), increasing the penalty for second degree murder from 15 to 25 years (HB20) and a bill to eliminate the costly film industry subsidy(HB19). All of these were tabled in the first committee, however, there are many other bills that I have introduced. These can all be reviewed at the legislative web site,

This letter is being sent out now to encourage as many as possible to visit the legislature while we are still in session. It is critically important for citizens to watch their elected representatives in action. It also gives you an opportunity to visit legislators in their offices and in the hallways. We are accountable to you and you need to know what it is we do.

If you come to Santa Fe, you can sit in the committee rooms as bills are presented. The committee chairman will ask if there is anyone in the audience who wishes to speak in favor or in opposition to the bill being heard. That would be your chance to stand up, state your name, where you are from, whom you represent (if anyone other than yourself), and say a few words pro or con. You can find out about these committees on line at the above web site.

There are many reasonably priced motels that are simple in nature and affiliated with national chains in Santa Fe. My evangelical friends might consider staying at the Glorieta Conference Center, which is only about 15 miles from the Capitol. If you do not wish to spend the night, it is possible to drive up to Santa Fe and back in one day and still have time at the legislature. I have done that myself.

To save costs, I am using up old stationary with last sessions committee assignments. I am also only sending this to a limited number of households. However, it will be available on my website, where you can also see a presentation that explains how to get around Please feel free to share this information with anyone you think might be interested.

While I am in Santa Fe I can be contacted at my office at 505-986-4453. I hope to see you during this session.


Dennis Kintigh

Monday, January 3, 2011

Good Intentions…Great Blessings

I always believed the phrase, “The road to hell is paved with good intentions” was found in Dante’s The Inferno. I’m told it isn’t. Maybe I should have read the book. I’ve been meaning to do that since college, but like some other tasks, it just doesn’t seem to get done.

When I last posted a blog on this website, I was excited about the pending elections. I wanted to keep everyone informed about the House Republican candidates whom I had met and gotten to know. I started off boldly with information about Melinda Russ. My friend Melinda came close but did not win, so perhaps it is a good thing I didn’t write about any of the other Republicans.

By now, you all know Republicans were very successful in changing the make up of the House of Representatives. We went from 25 to 33 out of a total of 70, a huge improvement. I wish I could say I played a significant role in helping that come to pass, but that would not be true.

This past election season, and continuing through the holidays, I have been serving as the Chief of Police of the Roswell Police Department. This development happened suddenly and completely unexpectedly. My appointment came about because of the former chief’s sudden retirement at the same time the Deputy Chief was scheduled to retire. To further complicate matters, the City of Roswell had a new mayor elected in March and was in the process of finding a new city manager. It was a time of significant transitions for the City of Roswell, and I felt led to raise my hand and offer my services. The enthusiasm with which I was welcomed to my new position was startling.

Fortunately, I had no opposition in either the primary or general election and the City leadership graciously allowed me time to fulfill my duties on Interim Committees. However, I really could not engage in political activity like I had hoped.

This experience has been incredible. It has truly been a privilege and honor to lead the Roswell Police Department. I made it a priority to reach out and listen to all aspects of the community. I had to confront some difficult challenges but chose to meet them head-on if at all possible and not leave them for my successor to resolve.

On a daily basis I am awed and impressed with what we expect of our young police officers and how they rise to the occasion. My joke is that I have suits that are older than some of these officers. Many were not yet in school when I first put on a badge.

At the end of every shift sergeants prepare a brief overview called the "Sargeant's Log." This consists of statistics on arrests, citations and calls for service. The log also includes a very brief narrative of the more significant incidents on the shift. Every morning I get up and check my email to see the sergeant’s log for swing shift which is usually completed around 2:30 a.m. Later on before I leave for the office, I read the log for the midnight shift. In strikingly concise and colorless prose, these first line supervisors matter-of-factly describe events that would strain the limits of civilians.

There was an incident in which a young officer beat the ambulance to a call for an infant who had stopped breathing. He performed CPR on a three-week old child until the paramedics arrived. This same officer had experienced a similar tragedy in his own family very recently.

On another occasion a new officer heard the call for a drive-by shooting, spotted and stopped a suspicious vehicle (with four occupants). He controlled the situation until back-up arrived, recovered guns and made arrests. I could go on and on but won’t.

In addition to this, there are countless calls of domestic violence, drunkenness and disorderliness, fights, alarms, and the “unknown trouble.” Dispatchers will call these out and the officers respond without hesitation. Many times, I hear an officer get on the radio and inform Dispatch that he is closer and takes it upon himself to deal with the issue. As I said, I am in awe of them.

One Saturday evening I got to present a Medal of Valor to a young officer. He was beginning his midnight shift. Other members of the command staff and I went to him rather than call him in at a time convenient for us. Some months earlier this officer had been in a violent shooting incident in which another officer was wounded. Our hero pulled his comrade from harm, ensured he would be “ok” and returned to the gun fight.

I also spent over two and a half hours listening to recordings of my officers dealing with a couple of arrogant and belligerent citizens—a citizens who should be a role models and leaders of our community, yet behaved so badly that I was embarrassed for Roswell. The officers were very professional but that did not stop the individuals from complaining constantly, both during the encounter and latter. It is amazing what officers have to deal with, yet can never lose their composure.

Shortly, I will be leaving this position and heading back to Santa Fe. I have no reservations about returning to the Legislature. I am confident that is the role I am meant to fulfill. Nonetheless, I will be forever thankful for this special opportunity to serve alongside some truly incredible young men and women. They called me “Chief” … how blessed am I.