Conflict Management & Acequia Enforcement

1. Conflict Management & Acequia Enforcement

2. Assessment, Easement, Interference and Illegal Use of Water Violations: Overview of Presentation • Internal Administrative Action • Discussion • Citation • Withholding water (Assessments) • Withholding right to vote (Assessments) • Civil Complaint • Assessment, Easement, and Interference Violations • Criminal Complaint • Easement and Interference Violations

3. Collecting Assessments

4. Progressive Enforcement:Internal actions for assessment violations • Verbal Agreements • First Citation: Stop Violation • Second Citation: Penalty • Authority: • 73-2-21 • Mayordomo oversees distribution of water, collection of fines, and labor assessments • 73-2-25, 73-3-6 • Withholding of water for failure to pay assessment for labor • 73-2-14, 73-3-3 • Withholding of vote for delinquent assessment • 73-2-25 • $100-$200 for continuing to use water after notice of failure to pay labor assessment

5. Citation Form: Type of Violation

6. Citation Form: Penalty

7. Civil Action for Collection of Assessments • 73-2-26 • After due notice (e.g. citations) • Failure to do work or failure to pay any amount assessed • Civil action for amount assessed • Mayordomo, superintendent, or ditch officials • Magistrate or district court • Attorneys fees if successful • Continued use of water and failure to pay after judgment: $200 recoverable in magistrate court

8. Easement Violations

9. Examples of Easement Violations • Building fences across acequias • Building structures within the easement or across the acequia • Blocking access to the acequia through a traditional point of access

10. Progressive Enforcement:Internal actions for easement violations • Verbal Agreements • First Citation: Stop Violation • Second Citation: Penalty - fine, penalty, damages or injunction in magistrate and/or district court • Authority: • 73-2-5 (A) Definition of acequia easement violation “it is unlawful to interfere with [the] easement or prevent access to the ditch by the owner of the dominant estate as provided by law” • 72-8-3. Interference with right-of-way “…it shall be unlawful to place or maintain any obstruction that shall interfere with the use of the [ditch], or prevent convenient access thereto”

11. Civil and Criminal Complaint: Easement Violations • 73-2-5 (B): Criminal complaint • DA, mayordomo, or commission • Magistrate court • Misdemeanor $300-$1,000 (and/or) • Up to 90 days imprisonment in county jail • 73-2-5 (C): Civil complaint • DA, mayordomo, or commission • Up to $5,000 • 73-2-5 (D): Damages and Injunction • DA, mayordomo, commission, or owner of dominant estate • District court

12. Interference with the Acequia and Illegal Use of Water • 73-2-64 • “A person shall not, contrary to the order of the mayordomo or commission, cut, beak, stop up or otherwise interfere with any community ditch or dam in this state, or lateral acequia thereof, or use water from the same contrary to such orders”

13. Progressive Enforcement:Internal actions for interference and illegal use of water • Verbal Agreements • First Citation: Stop Violation • Second Citation: Penalty – fine, penalty, damages or injunction in magistrate and/or district court • Authority: • 73-2-64: “A person shall not…cut, beak, stop up or otherwise interfere with any community ditch…or lateral acequia thereof” • 73-2-64: “A person who violates [this section] is guilty of a misdemeanor”

14. Criminal and Civil Complaint: Interference with the Acequia and Illegal Use of Water • 73-2-64 (B): Criminal complaint • DA, mayordomo, or commission • Magistrate court • $300-$1,000 • Default: 5 -30 days in county jail • 73-2-64 (C): Civil complaint • DA, mayordomo, or commission • Up to $5,000 • “knowingly, intentionally, and willfully violating” statute • 73-2-64 (D): Damages and Injunction • DA, mayordomo, or commission • District court • 73-2-64 (E): Duty of mayordomo to prosecute unless DA chooses to prosecute • Failure to prosecute is a misdemeanor • $25-$50, or • 10-30 days in jail

15. The Civil Suit Process: Documents, Filing Deadlines, Fees

16. Initial Steps Involving Acequia Suits

17. Step 1: File Complaint in Magistrate Court • Document: Complaint • 2-103.(D) Form of complaint.  The complaint shall be in substantially the form approved by the court administrator and the supreme court. • 2-201. (A) How commenced. A civil action is commenced by filing with the court a complaint consisting of a written statement of a claim or claims setting forth briefly the facts and circumstances giving rise to the action. • Filing Fee: $77 one-time fee

18. The Civil Complaint

19. Civil Complaint: Failure to Pay Assessments

20. Civil Complaint: Easement Violation

21. Civil Complaint: Interference/Illegal Water Use

22. Step 2: Clerk dockets the complaint Step 3: Court issues summons and service packet to plaintiff for service • Document: Service Packet includes the summons, return of service, copy of complaint, answer form Step 4: Plaintiff responsible for service • May contact Sheriff’s Dept. and pay $25 fee or have someone 18 or older and who is not a party serve defendant • Document: Completed Return of Service filed with court by person who served defendant • Plaintiff should contact the court to find out if defendant was served • If Return of Service is not returned and filed with the court: • judge will not take any action • case could be delayed or dismissed

23. The Summons and Return

24. Step 5: Defendant may file an answer or responsive pleading within 20 days of receiving summons • Document: Answer • 2-302. (B) The answer shall describe in concise and simple language the reasons why the defendant denies the claim of the plaintiff as well as any defenses he may have to the claim of the plaintiff.   or Defendant may file counterclaim against Plaintiff • 2-302. (D) If the defendant possesses a claim or claims against the plaintiff at the time the action is begun, they may be asserted in the answer as a counterclaim or setoff. The facts and circumstances giving rise to the claim or claims must be briefly described, in the form of answer approved by the supreme court.   

25. Counterclaim The Answer

26. Step 6: Court may enter default judgment if defendant does not answer complaint within 20 days of receiving complaint,orIf, the defendant answers, the court may enter judgment based on the pleadings if there is no objection

27. State Magistrate Court • Some complaints may be filed either in magistrate or state district court, but district court may not allow parciantes to proceed without an attorney • Claims greater than $10,000 cannot be heard in magistrate court