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