Tolling the statute of limitations

[NeilTheCop]

While I don't practice in your state, generally you have to lay the foundation for admission of the video; you can't just get up and start showing the video. That means having someone with personal knowledge of the video (which might be you) testify about the relevance and the authenticity of the video before you show it and ask that it be admitted into evidence. Exactly what you need to do for this depends on the rules and practices of the courts in your state.

Also, have you checked to see if you must share the video with the defendant before the hearing or produce a list of planned exhibits, etc., that you intend to introduce? Some courts require that parties share some of that information before a hearing or trial.

If you fail to lay a proper foundation at the hearing or miss a step that the rules require in advance of the hearing you open the door for the defense to object to admission of your evidence, and if it does not get admitted the court cannot consider it.

I checked the New Mexico Rules of Civil Procedure and it seems it's up to either party to request/demand discovery. Can't see any requirement that I volunteer it. But to be on the safe side I shall e-mail the defendants attorney and ask if he would like a copy of the videos and photos.

 

[Taxing Matters]

Google Earth images have already been accepted by the courts as having the same weight as a normal photograph. US v. Lizarraga-Tirado, 789 F. 3d 1107 - Court of Appeals, 9th Circuit 2015.

Bear in mind two things about that decision. First, and most importantly, it is a federal court decision interpreting the federal rules of evidence and thus is not binding on any state court as states use their own rules of evidence. Second, the decision simply says that an (unaltered) photograph, including a satellite image, is not hearsay. It does NOT say that the photograph may be admitted without the person offering the photograph laying the proper foundation to show relevance and authenticity. Indeed, the court mentions that the defendant's concerns in that case could be dealt with by the requirement of authentication.

No they admitted building the road, driving trucks on it and that the trucks were hauling manure. This was all in their answer to my original complaint they filed with the court.

The defendant's admissions in the answer are, of course, useable against the defendant, so that at least is helpful to you.

 

[NeilTheCop]

Bear in mind two things about that decision. First, and most importantly, it is a federal court decision interpreting the federal rules of evidence and thus is not binding on any state court as states use their own rules of evidence. Second, the decision simply says that an (unaltered) photograph, including a satellite image, is not hearsay. It does NOT say that the photograph may be admitted without the person offering the photograph laying the proper foundation to show relevance and authenticity. Indeed, the court mentions that the defendant's concerns in that case could be dealt with by the requirement of authentication.

Fortunately the satellite image from our County Treasurers Office is almost identical to the Google Earth image. I say almost because the Treasurers image has the parcel number and owner name shown on the image. So if need be I can invoke:

RULE 11-902. EVIDENCE THAT IS SELF AUTHENTICATING

(4) Certified Copies of Public Records
A copy of an official record or a copy of a document that was recorded or filed in a public office as authorized by law
if the copy is certified as correct by
(a) the custodian or another person authorized to make the certification, or
(b) a certificate that complies with Rule 11-902(1), (2), or (3), a statute, or a rule
prescribed by the Supreme Court.

So I just need to go to City Hall and get one of their staff to certify that the image is authentic.

I did contact the defendants attorney who seems to be most pleasant.
This of course immediately put me on my guard

 

[quincy]

... I did contact the defendants attorney who seems to be most pleasant.
This of course immediately put me on my guard

Haha. You are a smart fellow.

 

[Taxing Matters]

Fortunately the satellite image from our County Treasurers Office is almost identical to the Google Earth image. I say almost because the Treasurers image has the parcel number and owner name shown on the image. So if need be I can invoke:

RULE 11-902. EVIDENCE THAT IS SELF AUTHENTICATING

Use of the county's image under that rule with the proper certification certainly makes things easier, eliminates the need for a rep from Google to testify as to authenticity when laying the foundation for admission. It still doesn't prevent the defendant from attacking it (not that they'd have much reason to) but at least it wouldn't stop it getting admitted.

I did contact the defendants attorney who seems to be most pleasant.
This of course immediately put me on my guard

I'm a pretty pleasant guy when dealing with opposing counsel too, most of the time anyway. But the good opposing counsel know I'll still take advantage of every opportunity for my client that I can. Of course, I know they'll do the same. Doesn't mean we can't still be friends.

 

[NeilTheCop]

A surprising update. On Feb 5th I had my hearing, and yesterday I got a call from the judges secretary telling me the judge had granted the preliminary injunction.

 

[quincy]

A surprising update. On Feb 5th I had my hearing, and yesterday I got a call from the judges secretary telling me the judge had granted the preliminary injunction.

Great news, Neil!

 

[Taxing Matters]

A surprising update. On Feb 5th I had my hearing, and yesterday I got a call from the judges secretary telling me the judge had granted the preliminary injunction.

Congratulations. That is a major step forward. Good luck with the permanent injunction to follow.

 

[laurakaye]

A surprising update. On Feb 5th I had my hearing, and yesterday I got a call from the judges secretary telling me the judge had granted the preliminary injunction.

This is fantastic news!

 

[NeilTheCop]

Now some odd news.
I got a letter from the New Mexico Environmental Department, who are sort of a subsidiary of the EPA regarding the broken water well that I fear is allowing the run off from the manure to pollute the ground water.
The lady said that the well had been capped (I have lots of photos showing it's not) that the manure is not manure, it's compost, that it's been stacked very neatly, and the mind numbing 'If it is polluting the water I have no worries because the flow of the underground water table is away from my property'.
Anyone ever had any success filing a writ of mandamus against the EPA to compel them to do their job?

 

[Taxing Matters]

Now some odd news.
I got a letter from the New Mexico Environmental Department, who are sort of a subsidiary of the EPA

No, the New Mexico Environment Department (NMED) is NOT a subsidiary of any kind to the EPA. The NMED is a state agency, organized under state law, primarily funded by the state, with officials appointed by the state. The EPA does not control the NMED nor is it responsible for what the NMED does.

Anyone ever had any success filing a writ of mandamus against the EPA to compel them to do their job?

To the extent that you sue the EPA over the actions (or lack of actions) of the NMED that would fail for the reasons I just mentioned.

As an answer to your specific question on seeking mandamus against a federal agency, however, a federal court (and it would have to be in federal court) will only issue a writ of mandamus to a federal agency if the act involved is one in which the law provides the agency absolutely no discretion. None at all. And therein lies the problem because pretty much all enforcement activities of a federal agency all involve matters of discretion. It must decide, for example, where best to spend its limited resources, which acts will most further the objectives of the agency in advancing its mission, which things are not worth pursuing for one reason or another. Federal law gives the EPA a fair amount of power to attack environmental contamination but it does not mandate how the agency must use that power, i.e. it does not mandate that the agency attack every environmental problem it encounters. This is why you rarely see anyone bring a mandamus action to force a federal agency to enforce a particular law, and nearly all such actions that are filed fail.

I've not researched NM law with regard to mandamus directed at state agencies, but I would be surprised if it wasn't pretty similar. It is not the role of the courts to substitute a judge's choices on how agencies do their discretionary tasks over those choices made by the agency officials the state legislature (made up of elected officials) designated to make those decisions.

 

[NeilTheCop]

I wrote to the EPA initially who then forwarded my letter to the New Mexico Environmental Department, so it seems I jumped to an incorrect conclusion.
"NMED is mandated by the NM Water Quality Act and Water Quality Control Commission (WQCC) regulations to prevent or abate water pollution in the State at sites which pose a significant risk to human health and the environment. In addition, NMED cooperates with local and federal governments on various programs relevant to ground water pollution control."
https://www.env.nm.gov/water/So back to my original question. Will a writ of mandamus compel them to at least come to the site to inspect it and check if the water is being polluted?

 

[Zigner]

So back to my original question. Will a writ of mandamus compel them to at least come to the site to inspect it and check if the water is being polluted?

I believe that Taxing Matters answered your question regarding a writ of mandamus very thoroughly.

 

[Taxing Matters]

So back to my original question. Will a writ of mandamus compel them to at least come to the site to inspect it and check if the water is being polluted?

A recent case of the NM Court of Appeals explains the state rules on mandamus in a pretty succinct manner:

A writ of mandamus may be issued “only to force a clear legal right against one having a clear legal duty to perform an act and where there is no other plain, speedy and adequate remedy in the ordinary course of law.” Brantley Farms v. Carlsbad Irrigation Dist., 1998–NMCA–023, ¶ 16, 124 N.M. 698, 954 P.2d 763; NMSA 1978, § 44–2–5 (1884); NMSA 1978, § 44–2–4 (1884) (stating mandamus “may be issued ... to compel the performance of an act which the law specially enjoins as a duty.”). A writ of mandamus applies to ministerial duties—those arising when the law dictates that “a public official must act when a given state of facts exist”—and is inappropriate “when the matter has been entrusted to the judgment or discretion of the public officer.” Mimbres Valley Irrigation Co. v. Salopek, 2006–NMCA–093, ¶ 11, 140 N.M. 168, 140 P.3d 1117.​

Nat'l Educ. Ass'n of New Mexico v. Santa Fe Pub. Sch., 2016-NMCA-009, ¶ 17, 365 P.3d 1, 6–7.

Thus, you would need to find a law that imposes on the agency a "clear legal duty to perform" the act you are seeking. It must be ministerial; that is, the law leaves no discretion in whether to do that act (though even then, the courts will not control how the agency carries out the act it is mandated to do). The problem problem is that I don't see anything in the New Mexico statutes that compels the NMED or WQCC to enforce violations of the water quality regulations. There are provisions giving them and constituent agencies the power to do the enforcement, but nothing that says they must act. See Chapter 74, Article 6 of the NM statutes, which are the statutes governing water quality control.

The second problem is that mandamus will not be granted if you have another remedy under the law. Here, you can (and have) sued the neighbor for injunction to stop the contamination about which you complain. The availability of that remedy may prevent you from getting a writ of mandamus.

Note that state mandamus actions must be filed in NM district court.

So the bottom line is that I think it rather unlikely you'd get a writ of mandamus to get the state to come out and look at it or do anything about it. But you might want to consult a NM attorney who is familiar with suing the state to get advice on just what your chances are, how long it would take, and what it would cost. I would not recommend litigating a mandamus action on your own. They are difficult enough to win when you have a good lawyer.

 

[NeilTheCop]

You are correct, they don't legally have to do anything. Shocking really, taking all that taxpayer money then kicking back and doing nothing. A Government job at it's best.

74-6-10. Penalties enforcement; compliance orders; penalties; assurance of discontinuance.

A. Whenever, on the basis of any information, a constituent agency determines that a person violated or is violating a requirement, regulation or water quality standard adopted pursuant to the Water Quality Act or a condition of a permit issued pursuant to that act, the constituent agency may:
(1) issue a compliance order requiring compliance immediately or within a specified time period or issue a compliance order assessing a civil penalty, or both; or
(2) commence a civil action in district court for appropriate relief, including injunctive relief.