Assessment, Easement, Interference and Illegal Use of Water Violations: Overview of Presentation...

Conflict Management & Acequia Enforcement

Assessment, Easement, Interference and Illegal Use of Water Violations: Overview of

PresentationInternal Administrative Action

DiscussionCitationWithholding water (Assessments)Withholding right to vote (Assessments)

Civil ComplaintAssessment, Easement, and Interference

ViolationsCriminal Complaint

Easement and Interference Violations

Collecting Assessments

Progressive Enforcement:Internal actions for assessment violations

Verbal Agreements First Citation: Stop ViolationSecond Citation: Penalty Authority:

73-2-21 Mayordomo oversees distribution of water, collection of fines,

and labor assessments73-2-25, 73-3-6

Withholding of water for failure to pay assessment for labor73-2-14, 73-3-3

Withholding of vote for delinquent assessment73-2-25

$100-$200 for continuing to use water after notice of failure to pay labor assessment

Citation Form: Type of Violation

Citation Form: Penalty

Civil Action for Collection of Assessments

73-2-26After due notice (e.g. citations)Failure to do work or failure to pay any amount

assessedCivil action for amount assessedMayordomo, superintendent, or ditch officialsMagistrate or district courtAttorneys fees if successfulContinued use of water and failure to pay after

judgment: $200 recoverable in magistrate court

Easement Violations

Examples of Easement Violations

Building fences across acequiasBuilding structures within the easement or

across the acequiaBlocking access to the acequia through a

traditional point of access

Progressive Enforcement:Internal actions for easement violations

Verbal Agreements First Citation: Stop ViolationSecond 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”

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

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”

Progressive Enforcement:Internal actions for interference and illegal use of water

Verbal Agreements First Citation: Stop ViolationSecond 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”

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

The Civil Suit Process: Documents, Filing Deadlines, Fees

Initial Steps Involving Acequia Suits

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

The Civil Complaint

Civil Complaint: Failure to Pay Assessments

Civil Complaint: Easement Violation

Civil Complaint: Interference/Illegal Water Use

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

The Summons and Return

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.   

Counterclaim

The Answer

Step 6: Court may enter default judgment if defendant does not answer complaint within 20 days of receiving complaint,

or

If, the defendant answers, the court may enter judgment based on the pleadings if there is no objection

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