Tolling the statute of limitations

[laurakaye]

You wrote "It will be worth every penny to stop it. My house is unsaleable and my health is fast deteriorating even after closing my house up when they start at 7.45 in the morning. Check out the video, would you want that happening to you 6 days a week 10 hours a day with no end in sight?"

I was astonished by the video - literally a spray of manure floating in the air. It must coat EVERYTHING.

Which makes me wonder: what about contamination? Do you have well water? Here are guidelines and resources for getting your water tested in New Mexico: https://www.env.nm.gov/dwb/Safe/.../PrivateWellGuidance.docx

General discussion of the issue: (New Mexico is not mentioned, but the article provides a great (frightening) overview.

“He said, ‘What I found in your well is what I expect to find in a Third World country,’” Cochart recalled. When she told him she still needed to shower with that water, Borchardt advised, “Then keep your eyes closed and your mouth shut.”

https://troubledwater.news21.com/farming-activity-contaminates-water-despite-best-practices/

 

[NeilTheCop]

You wrote "It will be worth every penny to stop it. My house is unsaleable and my health is fast deteriorating even after closing my house up when they start at 7.45 in the morning. Check out the video, would you want that happening to you 6 days a week 10 hours a day with no end in sight?"

I was astonished by the video - literally a spray of manure floating in the air. It must coat EVERYTHING.

Which makes me wonder: what about contamination? Do you have well water? Here are guidelines and resources for getting your water tested in New Mexico: https://www.env.nm.gov/dwb/Safe/.../PrivateWellGuidance.docx

General discussion of the issue: (New Mexico is not mentioned, but the article provides a great (frightening) overview.

“He said, ‘What I found in your well is what I expect to find in a Third World country,’” Cochart recalled. When she told him she still needed to shower with that water, Borchardt advised, “Then keep your eyes closed and your mouth shut.”

https://troubledwater.news21.com/farming-activity-contaminates-water-despite-best-practices/

Funny you should mention that because one of the piles of manure is about 3 feet from a disused uncapped water well that was once used for irrigation.

 

[NeilTheCop]

Thanks for all your input.
I now have all my ducks in a row and will file on Monday for a temporary and permanent injunction to enjoin a private nuisance.
I expect the first reply will be a motion to dismiss citing the right to farm and the 1 year statute of limitations.
I'll use the equitable estoppal, and the fact that thy can't hide behind that act if the are operating negligently or unlawfully.
The plumes of manure in the air, the uncovered trucks and the piling of the manure near an uncapped well I believe are negligent. Driving the trucks on the public highway with an uncovered load is unlawful and I got an answer back from NMDOT that no permits were obtained to allow the road to be built and access a state road across the NMDOT easement, so the road itself is unlawful.
Should be enough to begin with.
I'll let you know how it goes or be back for more input.

 

[Whoops2u]

It seems to me the first step before getting to some fairness theory (That's what you're talking about with equitable estoppel) is to try and prove the statute does not apply at all.

if the operation was not a nuisance at the time the operation began and has been in existence for more than one year

1. Was not a nuisance at the time the operation began
AND
2. Been in existence for more than one year.

Aren't you going to claim it WAS a nuisance when the operation began? Your repeated and provable attempts to stop or limit it from the start should prove that to at least some extent. As /u/laurakaye wrote, the purpose of the statute is to prevent people from suing when they come to the nuisance. Your argument is the statute does not apply to you in this situation.

 

[justalayman]

I would also pose the defense to the sol issue that all activities ceased and the most recent activities should not be considered part of the same event.

The new activities should be considered a new beginning due to the length of cessation.



It may not be a winner but if you don’t apply it, you will lose the right to claim it.

 

[NeilTheCop]

It seems to me the first step before getting to some fairness theory (That's what you're talking about with equitable estoppel) is to try and prove the statute does not apply at all.

if the operation was not a nuisance at the time the operation began and has been in existence for more than one year

1. Was not a nuisance at the time the operation began
AND
2. Been in existence for more than one year.

Aren't you going to claim it WAS a nuisance when the operation began? Your repeated and provable attempts to stop or limit it from the start should prove that to at least some extent. As /u/laurakaye wrote, the purpose of the statute is to prevent people from suing when they come to the nuisance. Your argument is the statute does not apply to you in this situation.

It was a nuisance when it began hence my cease and desist letter, and part of my claim is that the nuisance moved to me.

 

[NeilTheCop]

Just to give you a heads up, I got an answer to my complaint, well that's not entirely true the defendants attorneys sent to answer to a totally incorrect address, I had to go to the court to get a copy.
No great surprise that they are claiming immunity under the right to farm act.
Going to get very interesting as this will be the first challenge to the amended NM right to farm act.

 

[NeilTheCop]

Another quick update.
I made a jury trial demand and got a letter from the defendants attorneys acknowledging that they had sent the letter to the wrong address.
Now the waiting begins, because as a former cop every local judge is recusing himself one by one. Just waiting to run out of judges so they bring an outside judge in.
Now a question.
Will their claim that they are exempt from this action because of the right to farm act be heard before going to trial or will that defence only be heard at trial?

 

[adjusterjack]

Will their claim that they are exempt from this action because of the right to farm act be heard before going to trial or will that defence only be heard at trial?

Possibly before trial if the defendants file a Motion for Summary Judgment which asks the judge to rule on whether the facts are not in dispute. If the alleged fact is that they are exempt under the right to farm law and the judge agrees, then judgment is for the defendant and no trial is necessary.

Google summary judgment and study up.

If the defendant's file for it you will have to file a response explaining why summary judgment should not be granted.

 

[Whoops2u]

I agree with /u/adjusterjack.

D. No cause of action based upon nuisance may be brought by a person whose claim arose following the purchase, lease, rental, or occupancy of property proximate to a previously established agricultural operation or agricultural facility, except when such previously established agricultural operation or agricultural facility has substantially changed in the nature and scope of its operations.

That indicates it might be able to be resolved as a matter of law, before trial in summary judgment. However, it should not be hard to get in some evidence that would defeat such a claim.

 

[laurakaye]

I agree with /u/adjusterjack.

D. No cause of action based upon nuisance may be brought by a person whose claim arose following the purchase, lease, rental, or occupancy of property proximate to a previously established agricultural operation or agricultural facility, except when such previously established agricultural operation or agricultural facility has substantially changed in the nature and scope of its operations.

That indicates it might be able to be resolved as a matter of law, before trial in summary judgment. However, it should not be hard to get in some evidence that would defeat such a claim.

I would THINK that the video showing manure spraying everywhere is proof that the operation has "substantially changed in nature and scope" - and - like Whoops2u says - it will serve as "evidence that would defeat" a summary judgment. I grew up around farming and members of my family still farm. I've never seen anything like that video.

Good luck and please keep us posted.

 

[NeilTheCop]

Thank you all.
Another part of the act excludes any claim of exemption if the operation is negligent or illegal.
The manure dust everywhere and uncovered trucks is without doubt negligent as is the storage of the manure within a few feet of an uncapped water well, and the moment the trucks drive onto the public highway with the load uncovered it is also then illegal.
I have other defenses but I'm now simply waiting for their motion for summary judgement or the demand for discovery.
Could take a while because so far all the judges have recused themselves due to their involvement in my cases when I was a cop.

 

[NeilTheCop]

Quick update. they finally ran out of judges I know and they assigned a judge from the adjacent county.
So it's hurry up and wait and in the meantime fend off the various anti intensive farm groups who want to interview me for a story.

 

[NeilTheCop]

In my last post I mentioned that I had been contacted by various anti intensive farming organization but so far have only given them an acknowledgement of the contact but have declined to give an interview.
I know why they are interested but I have concerns that talking to them may be detrimental to my case, or, as is seems to be a common practice would it be acceptable to get the media on my side prior to going to court?

 

[Taxing Matters]

In my last post I mentioned that I had been contacted by various anti intensive farming organization but so far have only given them an acknowledgement of the contact but have declined to give an interview.
I know why they are interested but I have concerns that talking to them may be detrimental to my case, or, as is seems to be a common practice would it be acceptable to get the media on my side prior to going to court?

Lawyers are generally not fond of their clients talking to the media before a case goes to trial. I counsel most of my clients against it. What you say to the media the other side can use against you if he helps them; but you cannot use what you say in your interview to help you at trial. So when focusing just on the trial aspects of it, there is no potential upside to talking to the media but there could be a significant downside to it. For some clients, particularly celebrities and politicians, the need to control the media fall out surrounding their case may warrant taking a carefully controlled risk of doing an interview or making a statement to the press. But for most people their litigation is not in the public eye and thus not hurting their public image so managing that image leading up to trial is not a concern for most.

If you give that interview, you won't be able to control what happens after the interview is published or broadcast. You'd want to be very sure that likely effect would be positive for you.