Acequia Rio de la Vaca -Photo taken by Thomas Hamm
By Olivia Romo, NMAA Staff
NMAA recommends that conflicts within acequias be resolved to the extent possible by reaching internal agreements. However, it may sometimes become necessary for acequia officials to take certain actions to enforce acequia bylaws, rules and regulations, in the interest of fairness or protecting the health and integrity of the acequia. One common area requiring enforcement is easement violations, the following are some proposed guidelines for enforcement:
- Whenever possible, attempt to resolve conflicts with violators by reaching an agreement through discussion. Keep a written record of those attempts.
- If discussion fails, the Mayordomo should issue a first citation as an order to stop the violation.
- If the violation has not ceased after the first citation, the Mayordomo should issue a second citation with a penalty that corresponds to the violation such as suspension of the right to vote, suspension of the right to use the ditch, or a monetary fine.
- After two unsuccessful citations, the Commission or Mayordomo may take appropriate legal action. Depending on the violation, the Commission or Mayordomo may involve the District Attorney in prosecution.
What is an easement?
An easement is a legal right-of-way onto another person's land. Acequias have a type of easement that is well-established and often centuries-old. An acequia easement runs along the ditch and its laterals. The "bordo" of the acequia is generally within the easement of that acequia. State law says that the width of the easement should be adequate for reasonable maintenance, use, and improvements. The easement carries with it the right to access (maintain, use, or improve) the entire length of the ditch. The acequia easement includes the right to make reasonable improvements. This includes the use of certain machinery as long as its use is for "reasonable maintenance, use or improvements." The acequia easement also includes the right to gain access to the ditch through traditional points of access, even when that includes crossing a person's property. There must be legitimate acequia business to be done each time there is entry onto someone's property.
What are some examples of violations of an acequia easement?
Access to the acequia is very important. In addition to informing your parciantes about your easement, acequia officials should also carefully monitor any actions by landowners that may be violations of the acequia easement. Some of these violations include the following:
- Building fences across the acequia which block the ability to walk or use equipment along the length of the ditch.
- Building structures like houses, decks, or corrals within the easement or across the acequia.
- Blocking access to the acequia through a traditional point of access. Landowners, particularly new ones, attempt to block acequia officials or cleaning crews from crossing their property to get to the acequia.
According to Section 73-2-5, NMSA 1978 (p. 167 of the "blue book") it is unlawful to interfere with the easement or prevent access to the ditch by the acequia. The easement shall be adequate to allow for reasonable maintenance, use and improvements to the acequia. If a parciante or a landowner is preventing access to the easement or ditch here are some action points to consider:
1. Send a letter to the landowner requesting for the removal of obstruction, a key to the gate, or reminder that for cleaning and maintenance all commissioners, elected officials, and contractors can enter the property to access the ditch.
2. After education and warning of violation of the acequia easement, if the issue is not rectified the commission may send another citation/letter to the landowner and District Attorney via certified mail.
3. If the landowner continues to violate the easement the commission can file a criminal or civil complaint and pursue the issue in magistrate court. The landowner could be charged with a criminal misdemeanor and fined $300-$1,000 and/or sentenced up to 90 days imprisonment in county jail.
4. The acequia or the D.A. may also file a civil complaint seeking a civil penalty up to $5,000 or may seek damages and/or request an injunction in district court to restrain any person from violating or continuing to violate the acequia's easement rights.
If your acequia has any easement concerns or violations please contact NMAA for templates of civil and criminal complaint letters, coaching on how to mitigate the situation before seeking legal relief, and to better understand acequia easement rights.
Contact NMAA Staff Olivia Romo at 505-995-9644 orOlivia@lasacequias.org for further assistance.