• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Tolling the statute of limitations

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

I was contacted by the Texas branch of the EPA who are also looking into it.
The EPA did say that the farm where the manure is being stored is not regulated as a Concentrated Animal Feeding Operation and as such does not need a National Wastewater Discharge Permit. The EPA went on to say that the manure originated from a dairy owned by the father of the two brothers who own the field nest to my place, and that dairy does had a discharge permit.
I'll just wait until I get the results of their investigation before doing anything else, and if they are polluting the water it means I can ask for the discharge permit to be revoked or at least object to the renewal which is due next year, thereby stopping the trucks at source.
This has got totally out of hand, as it has gone from a simple nuisance from a neighbor to possibly the very first legal challenge to the amended New Mexico Right to Farm Act.
 


A quick follow up.
I received a letter from the New Mexico version of the EPA. And the good news is that they said that the well in question was capped in 2015, they inspected the area and there is no cause for concern from possible water pollution.
It's good news because the defense attorneys only argument on why they could not use the part of the road that would take the dust away from me was that wells in the area had collapsed from the truck traffic.
But the EPA says there are no collapsed wells.
I wonder what they attorneys will come up with next to try and prevent this case going before a jury :)
 

quincy

Senior Member
A quick follow up.
I received a letter from the New Mexico version of the EPA. And the good news is that they said that the well in question was capped in 2015, they inspected the area and there is no cause for concern from possible water pollution.
It's good news because the defense attorneys only argument on why they could not use the part of the road that would take the dust away from me was that wells in the area had collapsed from the truck traffic.
But the EPA says there are no collapsed wells.
I wonder what they attorneys will come up with next to try and prevent this case going before a jury :)
Thanks for the update, Neil. :)
 

justalayman

Senior Member
Speaking of water pollutiOn:

Have you had your water tested recently? If they are polluting your water it would probably go a long way in changing things.

Not that you want to read a report that says you’ve been drinking water with BS in it but it would give you a valid argument against their operation.

the next county over where hog farming is prevelant has a real problem with nitrates due to the hog crap being washed into the ground.
 
No, that's correct. The letter said that the aquifer flow was away from my property so I was safe. Not sure where the people downstream get their water from though. But to be honest by the time the water is undrinkable I'll be long dead.
To me the main thing is that part of the preliminary injunction is the requirement that the threatened injury outweighs any harm the injunction might cause the Defendant. Their argument that it would cause them injury revolved in their supposed inability to use an alternative entrance to the road because they had caused wells to collapse. The EPA says this isn't so and the wells are fine.
 

quincy

Senior Member
No, that's correct. The letter said that the aquifer flow was away from my property so I was safe. Not sure where the people downstream get their water from though. But to be honest by the time the water is undrinkable I'll be long dead.
To me the main thing is that part of the preliminary injunction is the requirement that the threatened injury outweighs any harm the injunction might cause the Defendant. Their argument that it would cause them injury revolved in their supposed inability to use an alternative entrance to the road because they had caused wells to collapse. The EPA says this isn't so and the wells are fine.
I deleted my post that you referred to because I thought I must have misunderstood what the EPA concluded. :)

I am happy to hear that the EPA believes your water is safe from pollution - and in turn said that, because the other wells are capped, that there is no reason why the property owner must use the road that borders your property.

Positive update, Neil!
 
I deleted my post that you referred to because I thought I must have misunderstood what the EPA concluded. :)

I am happy to hear that the EPA believes your water is safe from pollution - and in turn said that, because the other wells are sealed, that there is no reason why the property owner must use the road that borders your property.

Positive update, Neil!
Thanks.
I hope the Judge accepts the letter as proof at the preliminary injunction hearing.
 

quincy

Senior Member
Thanks.
I hope the Judge accepts the letter as proof at the preliminary injunction hearing.
As long as the other party doesn't dispute the validity of the letter, it should be admissible. You might want the EPA drafter of the report on hand to testify.
 
As long as the other party doesn't dispute the validity of the letter, it should be admissible. You might want the EPA drafter of the report on hand to testify.
I have only been given an hour for the hearing so it may be a squeeze.
The good news is the trucks have stopped, but only because there are now piles of manure between 10 and 20 feet high covering about 8 acres and they physically cant fit any more on the land.
 

quincy

Senior Member
I have only been given an hour for the hearing so it may be a squeeze.
The good news is the trucks have stopped, but only because there are now piles of manure between 10 and 20 feet high covering about 8 acres and they physically cant fit any more on the land.
That is sort of good news/bad news. I cannot imagine living next to manure piled that high - and I live on a farm surrounded by farms - but at least the truck traffic has stopped. That is definitely good.
 

justalayman

Senior Member
Wells, capped or otherwise, are not the only means of polluting the aquifer. water percolating down into the aquifer can be just as bad.

I wouldn’t count on aquifer flow theory as proof your water isn’t contaminated. Given the closeness of the pollution source and the fact aquifers can have multiple flow patterns, i wouldn’t be comfortable without it being tested
 
Getting ready for my preliminary injunction hearing in a few weeks and I need some input.
One of the elements is that I must first prove is that I am likely to succeed on the merits. I thought that simply showing the many videos of what I am having to endure to a jury would be sufficient.
The defendant has already argued that I am unlikely to succeed because they are protected under the right to farm act.
My question is does the 'merits' only refer to the underlying case, that of a private nuisance, or can they argue that something they will be using as a defense in the trial will automatically mean that my case has no chance of success?
 

quincy

Senior Member
Getting ready for my preliminary injunction hearing in a few weeks and I need some input.
One of the elements is that I must first prove is that I am likely to succeed on the merits. I thought that simply showing the many videos of what I am having to endure to a jury would be sufficient.
The defendant has already argued that I am unlikely to succeed because they are protected under the right to farm act.
My question is does the 'merits' only refer to the underlying case, that of a private nuisance, or can they argue that something they will be using as a defense in the trial will automatically mean that my case has no chance of success?
Having a defense to a claim does not mean the claim will be dismissed.
 

Taxing Matters

Overtaxed Member
Getting ready for my preliminary injunction hearing in a few weeks and I need some input.
One of the elements is that I must first prove is that I am likely to succeed on the merits. I thought that simply showing the many videos of what I am having to endure to a jury would be sufficient.
The defendant has already argued that I am unlikely to succeed because they are protected under the right to farm act.
My question is does the 'merits' only refer to the underlying case, that of a private nuisance, or can they argue that something they will be using as a defense in the trial will automatically mean that my case has no chance of success?
Just showing the videos isn't enough (and you need to make sure you do what is necessary to ensure the videos are admissible as evidence). You also need to lay out the argument as to how the evidence you have meets all the requirements in the law for a nuisance and to do that you will have to rebut any applicable defense the defendant has. Succeeding on the merits means you'd likely win the case and of course that must take into account the defenses the other side has. This is why it is often said that the battle on the preliminary injunction is essentially the main trial in the case; how you do there pretty much foreshadows how the rest of the case plays out.

So if the defense is going to raise right to farm, you probably want to be prepared to deal with that at hearing. You don't want to get caught flat footed and unprepared for what the other side is going to present. It is better to be over prepared than under prepared.
 
Just showing the videos isn't enough (and you need to make sure you do what is necessary to ensure the videos are admissible as evidence). You also need to lay out the argument as to how the evidence you have meets all the requirements in the law for a nuisance and to do that you will have to rebut any applicable defense the defendant has. Succeeding on the merits means you'd likely win the case and of course that must take into account the defenses the other side has. This is why it is often said that the battle on the preliminary injunction is essentially the main trial in the case; how you do there pretty much foreshadows how the rest of the case plays out.

So if the defense is going to raise right to farm, you probably want to be prepared to deal with that at hearing. You don't want to get caught flat footed and unprepared for what the other side is going to present. It is better to be over prepared than under prepared.
Thanks, I think I have enough to negate the claim of being immune from the action.
How would a video not be admissible as evidence?
 

Sponsored Ad

Top