Tolling the statute of limitations

[quincy]

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.

Yup. You definitely would prefer to see a shall there.

 

[laurakaye]

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?

Would it be prudent to send a response to refute her claims?

 

[NeilTheCop]

Would it be prudent to send a response to refute her claims?

Actually she is correct, the manure is stacked in neat rows.
I made a video showing exactly where the broken well is located which I intend to send, but have little hope of it changing anything.

 

[NeilTheCop]

A quick update.
For about a week now there has been a procession of trucks being loaded with the dried manure, and they are using the section of the gravel road to the north of my property therefore complying with the preliminary injunction.
The nice large house, well more of a country estate really, that is opposite the entrance they are now using has gone from brick red to cow dung brown, and from what I hear the owner is not happy
The reason the farmer gave for not using that entrance all along was that a shallow well had collapsed. This can only mean one of three things.
1. Despite the known risk of water pollution they are knowingly driving their trucks over a broken well
2. They have had the well repaired, but there is no public record from the State Engineers office showing a repair permit was issued (legal requirement)
3. There was no broken well in the first place.
As no date has been set for the jury trial I may file a motion for summary judgement.

 

[Taxing Matters]

As no date has been set for the jury trial I may file a motion for summary judgement.

Based on what? Summary judgment requires that there be no material facts in dispute so that the court can resolve the summary judgment from the pleadings and other materials already in the court's possession. If you need to show the court anything about what has transpired since the preliminary injunction was issued — in other words you need to introduce evidence — a hearing or trial will be needed and summary judgment wouldn't be possible.

 

[NeilTheCop]

Based on what? Summary judgment requires that there be no material facts in dispute so that the court can resolve the summary judgment from the pleadings and other materials already in the court's possession. If you need to show the court anything about what has transpired since the preliminary injunction was issued — in other words you need to introduce evidence — a hearing or trial will be needed and summary judgment wouldn't be possible.

At no time did the defendant argue that his action was not a nuisance. He admitted building the road and using it to transport manure for storage. The many videos I presented as evidence showed the dust from the roads and the uncovered manure blowing onto my property. The defendant did not dispute this. My videos also showed the trucks with the uncovered manure being driven on the public road, which is unlawful and quite possibly a public nuisance as well, although that is not part of this action.
The only defense offered was the perceived immunity under the New Mexico right to farm act. One of the caveats that precluded any such claim was the concept of moving to the nusiance. I showed documentary proof that the farmer purchased the field in 2014 and my deed showed I purchased my property in 2005. I believe the judge negated any such defense from the right to farm act by granting the preliminary injunction.
So it would seem there are no material facts in dispute.

 

[Taxing Matters]

I believe the judge negated any such defense from the right to farm act by granting the preliminary injunction.
So it would seem there are no material facts in dispute.

If the judge believed that, there would not have been a trial scheduled for the permanent injunction. Remember, the standards for the preliminary injunction and permanent injunction are not the same.

 

[NeilTheCop]

If the judge believed that, there would not have been a trial scheduled for the permanent injunction. Remember, the standards for the preliminary injunction and permanent injunction are not the same.

At the hearing for the preliminay injunction the defendant asked the case be dismissed because of the claim that the right to farm act exempted them from the action. The judge obviously disagreed and denied the motion.

 

[Taxing Matters]

At the hearing for the preliminay injunction the defendant asked the case be dismissed because of the claim that the right to farm act exempted them from the action. The judge obviously disagreed and denied the motion.

Right, but the purpose of the preliminary injuction and permanent injunction are a bit different. The fact that the judge granted your premliminary injunction is a good sign, of course, but it doesn't mean that the court will be able to grant summary judgment to you. You may still need to prove up your case at the trial for the permanent injunction.

 

[NeilTheCop]

Right, but the purpose of the preliminary injuction and permanent injunction are a bit different. The fact that the judge granted your premliminary injunction is a good sign, of course, but it doesn't mean that the court will be able to grant summary judgment to you. You may still need to prove up your case at the trial for the permanent injunction.

This was the sole reason for demanding a jury trial. I believe that when I show the jury the many videos that I have of the manure dust drifting across my property from an almost constant stream of trucks all I will need to ask is "If this was your house, would you want the trucks to take the alternative route?"

 

[quincy]

This was the sole reason for demanding a jury trial ... all I will need to ask is "If this was your house, would you want the trucks to take the alternative route?"

Well, you need more than that.

 

[NeilTheCop]

Well, you need more than that.

Such as?

 

[quincy]

Such as?

You need evidence that what the property owner is doing violates the law. That is your challenge - not that the dust is unpleasant.

 

[justalayman]

I haven’t been following this too closely but sometimes what Neil has is enough. It would depend on what is considered a (legally defined) nuisance. Sometimes that is enough succeed in changing things.

 

[quincy]

I haven’t been following this too closely but sometimes what Neil has is enough. It would depend on what is considered a (legally defined) nuisance. Sometimes that is enough succeed in changing things.

Sometimes? Perhaps.