assessment, easement, interference and illegal use of water violations: overview of presentation...
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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