Enforcement: The Role of Acequia Officials

OFFICE OF THE EIGHTH JUDICIAL DISTRICT ATTORNEY

Presented by:

Donald Gallegos, District Attorney

COLFAX • TAOS • UNION

105 Albright Street, Suite – L , Taos, NM 87571 (575) 758-8683

Tomas Trujillo, Program Director/ Investigator

ENFORCEMENT: THE ROLE OF ACEQUIA OFFICIALS

& DISTRICT ATTORNEYS

DISCLAIMER The information provided within this presentation is taken from the laws of the State of New Mexico, and the interpretation thereof is that of the Eighth Judicial District Attorney alone. Each of the 14 District Attorneys may or may not have their own requirements and procedures for handling acequia matters.

CAUSES OF ACEQUIA CRIME • Lack of Knowledge – New residents – Younger Generation

• Lack of Cultural Ideals or Beliefs – Importance of water in New Mexico and its tie to the land – No sense of community

• Arrogance – – – –

I come first attitude I’m upstream You are not allowed on my land I’m done watering when I say I’m done

• Sense of Entitlement – The water is mine because it’s on my land – I paid for it – I own more land

• Greed – No one else can have it – My land is my land and only my land – Your water belongs to me because it’s on my land

•

Necessity

CRIMINAL LAWS PERTAINING TO ACEQUIAS

§73-2-5, NMSA 1978

Ditch over land of another; easement; right of servient owner; penalty.

§73-2-5, NMSA 1978 • CONTINUOUS use of a ditch for the purposes of irrigation for more than 5 years = EASEMENT (Easement shall be adequate to allow for reasonable maintenance, use, and improvements) • It is unlawful to interfere with that easement or prevent access to the ditch • The landowner (servient) may move the ditch as long as it doesn’t interfere with use or access • Provides for injunction in District Court

CRIMINAL LAWS PERTAINING TO ACEQUIAS

§73-2-64, NMSA 1978

Interference with ditch; illegal water use; penalty; failure to prosecute; injunctive relief.

§73-2-64, NMSA 1978 • A person shall not, cut, break, stop up or otherwise interfere with any community ditch or dam, or any contra or lateral acequia thereof, or take water from the same, contrary to such orders. • Provides for civil complaint for damages • Provides for injunction in District Court • IT IS THE DUTY OF THE MAYORDOMO! – If he/she does not act, that too is a crime.

CRIMINAL LAWS PERTAINING TO ACEQUIAS

• §73-2-19 & 20, NMSA 1978, [Mayordomo not to lease lands; penalty.] (1899)

73-2-19 & 20, NMSA 1978, • It shall be unlawful for any mayordomo or mayordomos of acequias, to take on shares, care for, or rent or lease any lands, lots or alfalfa fields under irrigation within the ditches for which they are mayordomos, during the time that they are said mayordomos, besides those lands actually belonging to them as their own property or that of their wives.

73-3-1, NMSA 1978,

Ditches or Acequias; Special Provisions Governing Certain Counties

73-3-1, NMSA 1978,

This section applies only to the following counties within the State of New Mexico:

73-3-1, NMSA 1978 Bernalillo Catron Cibola De Baca Harding Hidalgo Lea Los Alamos

Mora Sandoval San Miguel Sierra Socorro Taos Torrance Valencia

CRIMINAL LAWS PERTAINING TO ACEQUIAS (CERTAIN COUNTIES) • §73-3-8, NMSA 1978, [Mayordomo; failing to perform duties; malfeasance.] • §73-3-9, NMSA 1978, [Ditch commissioner; neglect of duties.] • §73-3-11, NMSA 1978, Counties in which not in effect.: Dona Ana, Grant, Otero, Luna, Lincoln, Chaves, Eddy, Santa Fe, Guadalupe, Colfax, Union, Rio Arriba, San Juan, Quay, McKinley, Roosevelt, as the same existed on the 11th day of March, 1903.

LAWS PERTAINING TO ACEQUIAS (CERTAIN COUNTIES): 73-3-8 • [Mayordomo; failing to perform duties; malfeasance.] (1903) • If any mayordomo of any community ditch or acequia, after having undertaken to serve as such, shall willfully neglect or refuse to perform any of the duties of his office, or conduct himself with impropriety or injustice in his office as mayordomo or take any bribe in money, property or otherwise as inducement to act improperly,

LAWS PERTAINING TO ACEQUIAS (CERTAIN COUNTIES): 73-3-8

• he shall, upon conviction before any justice of the peace [magistrate court] within the county where such offense is committed, be punished by a fine not exceeding fifty dollars ($50.00) or by imprisonment in the county jail not exceeding thirty days or by both such fine and imprisonment, at the discretion of the court or jury trying the case.

LAWS PERTAINING TO ACEQUIAS (CERTAIN COUNTIES): 73-3-9 • [Ditch commissioner; neglect of duties.] (1903) • Any willful neglect of his duties or abuse of his powers by any ditch commissioner shall be deemed a misdemeanor and any such commissioner, upon conviction thereof before any justice of the peace [magistrate court] within the county where such offense is committed, shall be fined in a sum not exceeding twenty-five dollars ($25.00) recoverable in the manner provided by law.

CIVIL LAWS PERTAINING TO ACEQUIAS: 73-2-29, NMSA 1978 • 73-2-29. [Improper conduct of mayordomo or commissioner; removal from office; temporary appointment of successor] • Gives any water user of a public ditch recourse in dealing with a mayordomo or ditch commissioner that is negligent in their duties • Action may be brought before District Court

CIVIL LAWS PERTAINING TO ACEQUIAS: 73-2-25, NMSA 1978 • 73-2-25. Persons delinquent not to use water; penalty. (1977) • No person may use water if they have not worked the acequia, provided a worker, or paid for the work, and is prohibited from using the water until the debt is satisfied • Any person who continues to take or use any water after having been given notice of failure or refusal to do his work, or pay the amount assessed against him in lieu of the work shall pay a civil penalty for the benefit of the ditch or acequia of not less than one hundred dollars ($100) nor more than two hundred dollars ($200).

CIVIL LAWS PERTAINING TO ACEQUIAS: 73-2-25, NMSA 1978 • 73-2-25. Persons delinquent not to use water; penalty. (1977) • The penalty may be recovered in an action by the ditch officials before the magistrate court in the county where the ditch is located. • Does NOT apply to annual dues or assessments. See 73-2-64, Illegal use

ENFORCEMENT The policy of the Eighth Judicial District is to first attempt to mediate the issues with all affected parties.

ENFORCEMENT We advise the accused of the allegations against them and allow them an opportunity to respond and correct the adverse action, if necessary.

In a perfect world, that would be wonderful… Sometimes… Ya gotta go to court…

CASES IN TAOS COUNTY

DEVELOPMENT • THE WORLD IS NOT GETTING ANY BIGGER • PROPERTIES ARE BEING SUBDIVIDED QUICKLY • LAND USE CODES FAIL TO RECOGNIZE ACEQUIAS • DEVELOPERS DO NOT UNDERSTAND OR RESPECT ACEQUIA RIGHTS

SNM v. Cody West • The defendant was permitted to develop an area within Taos, and in doing so, built over underground springs that fed the Spring Ditch • Case was deliberated and mediated in District Court • Defendant eventually agreed to certain conditions and upon completion the matter was dismissed subject to an MOU

SNM v. Valverde Commons • The development group was accused of illegally diverting and/or stopping the flow of water • The case was mediated for months, eventually the matter was settled with the accused agreeing not to stop ditch without permission, not relocate the ditch and improve the ditch

• Victims were unhappy with the decision

Illegally Diverting or Taking Water • Sometimes landowners believe that they are entitled to take water from wherever they choose, whenever they choose. • Sometimes they will not take no for an answer, when told not to take water • Landowners may resort to threats or acts of violence, intdimidation or vandalism

SCARCITY

SCARCITY • ACTS OF VIOLENCE ALSO OCCUR DURING DRY YEARS OR TIMES OF WATER SHORTAGE – LANDOWNERS TAKE WATER WITHOUT PERMISSION – TENSION AND STRESS IS CREATED WHEN FAVORITISM IS SHOWN, OR WATER IS NOT EQUALLY DISTRIBUTED – UNPERMITTED DIVERSIONS ARE CREATED OR PUMPS USED

SNM v. Pablo Gonzales • The defendant was accused of damaging acequia property, taking water illegally and trespass • The case was heard before a magistrate judge and defendant was found guilty • Defendant appealed the courts decision and the appeal was remanded back to magistrate for imposition of sentence.

PROPERTY DISPUTES • FAMILY PLOT SUBDIVIDED – NEW LATERAL CREATED

– SOMEONE WAS WILLED A BIGGER PIECE OF PROPERTY – SOMEONE DOESN’T PAY DUES

– PROPERTY LOST – WATER RIGHTS LOST

– INFIGHTING AND JEALOSY

PROPERTY DISPUTES • NEW NEIGHBOR – DOESN’T KNOW ACEQUIA RULES OR LAW • USES DITCH ILLEGALLY • STOPS, DIVERTS, CUTS OR BREAKS DITCH • WATER RIGHTS PURCHASED, MISUSED • PRIORITY FOR AGRICULTURE

• OLD NEIGHBOR DOESN’T WANT/LIKE NEW NEIGHBOR

SNM v. Archuleta • The defendant was accused of withholding water from others, breaking locks on head gate, digging into acequia, and using water without permission • Board was not acting on behalf of parciantes • Case was mediated with board and defendants family, defendant unreasonable, agreed not to prosecute, as long as he stopped • Family disputes, irrational personalities

• Defendant has allegedly violated the agreement

VIOLENCE OR THREAT AGAINST A MAYORDOMO • DISOBEYING THE ORDER OF THE MAYORDOMO (rotation schedule)

• NO WATER RIGHT (stealing water) • NOT ALLOWING MAYORDOMO ON PROPERTY EASEMENT • ASSAULT/BATTERY

Acequia - La Otra Banda • Spring fed ditch originating on property purchased by rancher/lessor • Lessee refused access by show of force, cattle destroyed acequia banks, used water outside of apportioned rotation

• Owner evicted lessee, began using water legally, repaired ditch banks, access was granted • Other underlying issues exist

OUR PROCEDURES • INVESTIGATION • NOTIFICATION • MEDIATION • PROSECUTION • ENFORCEMENT

OUR PROCEDURES • INVESTIGATION – Office receives a complaint from mayordomo or parciante – Mayordomo is directed to notify the offending individual if not yet notified – Parciante is directed to notify board/commission or mayordomo

– Documentation requested

OUR PROCEDURES • NOTIFICATION – Offending party is notified, in writing, of the allegations against them, given a deadline to respond and present themselves for an interview – There are at least two sides to every story – If resolution is not reached, move to mediation

OUR PROCEDURES • MEDIATION – If resolution is not reached, or the investigation leads us to believe that the offending party is indeed at fault mediation is offered – Parties are brought to the table and educated in acequia law, Acequia’s bylaws, and issues are discussed and resolution reached – If resolution is not reached or offending party is not amenable to mediation, prosecution is initiated

OUR PROCEDURES • PROSECUTION – By law, under 73-2-5 and 73-2-64, the mayordomo or commission may file a criminal complaint in magistrate court – Our office may enter an appearance or dismiss the case pending further investigation – Our office may file or re-file a criminal complaint if mediation is unsuccessful and our investigation reveals evidence of the crime beyond a reasonable doubt

OUR PROCEDURES • ENFORCEMENT – Our office will ensure that the order of the court is carried out, including restitution, orders against trespass, or other penalty imposed by the court – If the defendant fails to comply, an order to show cause will be requested, and the defendant will again be called before the court – If defendant fails to comply, the full penalty of the law may be imposed

CONTENTIOUS ISSUES • PROSECUTION OF GOVERNING BODIES • PROTECTION/ENFORCEMENT OF PRIVATE DITCHES/LATERALS • WATER RIGHT vs. DITCH RIGHT • FAMILY DISPUTES • CIVIL MATTERS

OFFICE OF THE EIGHTH QUESTIONSJUDICIAL DISTRICT THANK ATTORNEY YOU

Donald Gallegos, District Attorney 105 Albright Street, Suite - L Taos, NM 87571 (575) 758-8683

Presented by: Tomas Trujillo, Program Director/ Investigator