December 19, 2013 – Parkview Community Ditch Association v. Douglas Peper and Lance Peper, No. 32,276

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	December 19, 2013
NO. 32,276
PARKVIEW COMMUNITY DITCH
ASSOCIATION,
Plaintiff-Appellee,
v.
DOUGLAS PEPER AND LANCE PEPER,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Barbara J. Vigil, District Judge
Daniel A. Sanchez
Daniel J. Sanchez
Albuquerque, NM
for Appellee
Just Appeals.Net
The Appellate Law Office of Scott M. Davidson, Ph.D.
Scott M. Davidson
Albuquerque, NM
for Appellants

OPINION
BUSTAMANTE, Judge.
{1} 	This case began its life as a dispute between the Parkview Community Ditch
Association and Appellants, the Pepers, concerning placement by the Pepers of a new
headgate on the Association’s acequia system. The dispute led the Association to seek
an injunction to stop the construction. The case mushroomed to include a challenge
to the district court’s jurisdiction and to implicate the statutes governing acequias and
the Open Meetings Act (OMA). 	See NMSA 1978, §§ 10-15-1 to -4 (1974, as
amended through 2013); NMSA 1978, §§ 73-2-1 to -68 (1874, as amended through
2005).
{2} 	We affirm the district court’s rulings concerning its jurisdiction and its ultimate
decision ordering removal of the structure, but we reverse the district court’s order
granting attorney fees to the Association. Finally, we remand one of the OMA claims
for further consideration.
BACKGROUND
{3} 	As context for the facts specific to this case, we provide a brief history of the
laws governing acequias in New Mexico.
New Mexico being in the arid region, the early settlements were
established along the banks of perennial rivers, or in the mountain
valleys where water from springs and creeks was reasonably certain to

2
be available for irrigation at the needed times. . . . [T]he people built
their houses and established their towns and plazas close together, and
cultivated the lands in small tracts adjacent to the settlement. . . . [T]he
people 	by 	their 	joint 	effort 	would 	construct 	an 	irrigation 	ditch,
sufficiently large to convey water to their lands for the irrigation of
crops. 	Each individual owned and cultivated a specific tract of land,
sufficient to provide food for the needs of his family, and from the main
ditch laterals were run to the various tracts of land to be watered.
Snow v. Abalos, 1914-NMSC-022, ¶ 8, 18 N.M. 681, 140 P. 1044; see generally
Christopher J. DeLara, Who Controls New Mexico’s Acequias? Acequia Government
& Wilson v. Denver, 40 Nat. Resources J. 727, 728 (2000). “The distribution of the
water and the repair of the ditch was in charge of a mayordomo, or officer elected by
the water users under the ditch.” Snow, 1914-NMSC-022, ¶ 8. The mayordomo had
the authority to “require the water users to contribute labor toward the repair of the
ditch and its maintenance, and also distributed the water to the various irrigators
equitably, in proportion to the land to be irrigated.” Id. Today, “[t]he governmental
and managerial structure of the acequia is based on the historic management of the
acequia[.] . . . The ditch rules that govern acequia affairs . . . for the most part simply
codify the norms already imbedded in custom and tradition.” DeLara, supra, at 728-
29 (internal quotation marks omitted).
{4} 	The parties’ dispute in the present matter arose when the Pepers, relatively new
owners of land served by the ditch, notified the Association of their intent to install
a diversion structure in the ditch. In spite of the fact that neither the Association nor

3
the mayordomo, Walter Piña, approved the Pepers’ plans, the Pepers installed the
structure. The parties disagree as to whether the mayordomo told the Pepers in person
that the structure must not be installed and also on whether the structure was built in
compliance with the mayordomo’s recommendations and/or the Association’s bylaws.
{5} 	Piña 	and 	Pedro 	Arechuleta, 	acting 	as 	mayordomo 	and 	commissioner
respectively, sought and obtained a temporary restraining order on behalf of the
Association prohibiting the Pepers from continuing work on the ditch and ordering
removal of the structure “until all surveys are provided.” After a hearing on an order
to show cause why the restraining order should not be extended or a preliminary
injunction issued, the district court permitted the Pepers to post a $1,000 bond instead
of removing the structure and extended the restraining order pending an evidentiary
hearing. 	The Pepers then filed counterclaims alleging violations of the OMA and
asserting that the petition was invalid because Piña and Arechuleta were not properly
authorized to file it.
{6} 	After two days of evidentiary hearings, the district court rejected the Pepers’
counterclaims based on violations of the OMA and ordered the Pepers to submit plans
and surveys for the structure to Piña for review. 	It also required Piña to “issue
findings identifying any and all inadequacies . . . in the plans and survey within

4
[fourteen] days of submission[,]” to which the Pepers were required to respond with
“a written proposal as to how they would correct any inadequacies or deficiencies
identified by the mayordomo.” 	The order provided that the Pepers “shall have
ten . . . days to file objections to the [n]otice of [i]nadequacies and [d]eficiencies
provided by . . . [the] mayordomo, and if [the Pepers] timely file such objections, the
[district c]ourt will resolve the objections as provided by subsequent order.” 	The
district court also ordered the Pepers to pay over $21,000 in attorney fees to the
Association.
{7} 	The Pepers moved for reconsideration of the order in part and dismissal of the
action for lack of standing. They argued that because of the Association’s violations
of the OMA, neither Piña nor Arechuleta were properly elected and, therefore, they
did not have standing to file a petition on behalf of the Association against the Pepers.
They maintained that “[i]t is well established in New Mexico that lack of standing
under a statutorily created cause of action implicates a court’s subject matter
jurisdiction.” 	The Pepers also argued that Piña’s work inspecting the work on the
headgate was void because—based on a number of OMA violations in the 2011
election—he had not been properly elected as mayordomo for the 2012 calendar year.
The Pepers also objected to Piña’s findings on factual grounds. Based on the OMA

5
violations, they also argued that they, not the Association, were entitled to attorney
fees.
{8} 	The district court held a hearing on the motion to reconsider or dismiss and on
the Pepers’ objections to Piña’s findings. After the hearing, the district court found
that (1) it had jurisdiction over this matter and denied the motion to reconsider or
dismiss, and (2) the Pepers’ objections to Piña’s findings were “not well taken” and
ordered the Pepers to remove the structure. Additional facts are provided as pertinent
to our analysis of the issues on appeal.
DISCUSSION
{9} 	We begin by addressing the Pepers’ arguments pertaining to the OMA. The
Pepers assert that, because of the Association’s violations of the OMA, Piña and
Arechuleta were never properly elected as officers of the Association in 2010 and
hence lacked standing to bring the present suit. They argue further that the present
suit is invalid because the Association never properly met and voted to initiate the suit.
Finally, they argue that Piña was never properly elected as mayordomo in December
2011 for the following year and, therefore, he did not have the authority in 2012 to
make findings about the Pepers’ structure or to compel compliance with those
findings. After a general review of the OMA, we address these arguments in turn.

6
{10} 	Under the OMA, “it is declared to be public policy of this state that all persons
are entitled to the greatest possible information regarding the affairs of government
and the official acts of those officers and employees who represent them.” Section 10-
15-1(A). “All meetings of any public body except the legislature and the courts shall
be public meetings[.]” 	Id. 	In furtherance of this policy, the OMA requires public
meetings, advance notice of the meeting and the agenda, and written minutes of the
meeting, to be open to public inspection. See § 10-15-1(B), (D), (G). Section 10-15-
1(G) provides that written minutes “shall include at a minimum the date, time and
place of the meeting, the names of members in attendance and those absent, the
substance of the proposals considered and a record of any decisions and votes taken
that show how each member voted.”
{11} 	“Acequia and community ditch associations are political subdivisions of this
state.” Section 73-2-28. As such, they fall within the ambit of the OMA. See § 10-
15-1(B) (“All meetings of a quorum of members of any board [or] commission . . . of
any . . . political subdivision, . . . are declared to be public meetings open to the public
at all times[.]”); see also § 73-2-21(D) (“All proceedings of the commissioners . . .
shall be reduced to writing in a book . . . , and all books and papers so kept by the
commissioners . . . shall always be . . . public property, and shall be subject to the
inspection of all persons therein concerned.”).

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{12} 	The Association held a meeting in December 2010 to elect officers for the
following year. The Pepers do not dispute that the Association publicly announced
the meeting and the agenda in advance, nor do they dispute that there was a quorum
or that the meeting was open to the public. They maintain instead that the actions at
the meeting are invalid because the minutes did not record how each member voted.
See § 10-15-1(G) (stating that minutes “shall include . . . a record of any decisions and
votes taken that show how each member voted”). 	This position, however, is not
consistent with New Mexico law, which requires substantial, not strict, compliance
with the OMA. See Gutierrez v. City of Albuquerque, 1981-NMSC-061, ¶¶ 13, 15,
96 N.M. 398, 631 P.2d 304.
{13} 	Under the substantial compliance standard, “when the [OMA] has been
sufficiently followed so as to carry out the intent for which it was adopted and serve
the purpose of the statute[,]” no violation has occurred. Id. ¶ 14. The purpose of the
OMA is “to provide that governing bodies . . . be required to make decisions in the
open where the interested public c[an] observe the action.” 	Id. ¶ 8 (quoting Raton
Pub. Serv. Co. v. Hobbes, 1966-NMSC-150, ¶ 18, 76 N.M. 535, 417 P.2d 32).
Although compliance with the OMA’s provisions is generally necessary to meet this
goal, “[i]t can be said with equal assurance that in enacting the [OMA,] the Legislature

8
did not intend to impair or impede the effective workings of the various political
subdivisions of the state.” Id. ¶ 12.
{14} 	An example of substantial compliance is found in Gutierrez. There, the city
council held a public meeting in a room that could not accommodate all of the people
who wanted to attend. Id. ¶ 3. Gutierrez sued, alleging that the meeting violated the
OMA’s requirement that “all persons so desiring shall be permitted to attend and listen
to the deliberations and proceedings” at a public meeting. Id. ¶ 4 (internal quotation
marks and citation omitted); see § 10-15-1(A). The Supreme Court observed that the
city council held its meeting in a large hall, made efforts to allow the overflow crowd
to listen to the proceedings, and permitted those present to address the council.
Gutierrez, 1981-NMSC-061, ¶ 15. Rejecting a strict interpretation of the statute, the
Court concluded “that the words [attend and listen] mean only that the governmental
entity must allow reasonable public access for those who wish to attend and listen to
the proceedings.” 	Id. 	Thus, in spite of the fact that some people were not able to
attend the meeting, the Court held that there was no violation of the OMA and
therefore no reason to hold the action taken at that meeting invalid. Id. ¶¶ 2, 15.
{15} 	We see no reason why the principle of substantial compliance should not apply
here. The purpose of the OMA’s requirement for recording how each member voted
is to allow “the people . . . to know how their representatives vote on important

9
questions.” 	State ex rel. Savarese v. Buckeye Local Sch. Dist. Bd. of Educ., 660
N.E.2d 463, 466 (Ohio 1996) (internal quotation marks and citation omitted). This
requirement provides accountability for representatives who act on behalf of others.
See City of King City v. Cmty. Bank of Cent. Cal., 32 Cal. Rptr. 3d 384, 404 n.18 (Cal.
Ct. App. 2005) (“The requirement of a ‘recorded vote’ in [the statute] is no doubt
intended to ensure some measure of accountability on the part of local legislators who
approve (or refuse to approve) expenditures of public funds.”); City of Valentine v.
Valentine Motel, Inc., 125 N.W.2d 98, 101 (Neb. 1963) (“[T]he provisions requiring
the recording of the yeas and nays were intended to . . . [ensure] that the public might
have the opportunity to know how their councilmen had voted upon the passage of
any given ordinance.” (emphasis, internal quotation marks, and citation omitted)); Bd.
of Educ. of New Concord Sch. Dist. v. Best, 39 N.E. 694, 697 (Ohio 1894) (“The
purpose [of recording yeas and nays] is to make [those voting] feel the responsibility
of their action when these important measures are upon their passage, and to compel
each member to bear his share in the responsibility, by a record of his action which
should not afterwards be open to dispute.” (internal quotation marks omitted)).
{16} 	Here, Section 73-2-14 provides that “those having water rights in the acequia
or ditch and who are not delinquent in the payment of their assessments . . . shall be
allowed to vote” for commissioners and the mayordomo. 	In the Association’s

10
practice, each person meeting these requirements is accorded one vote. See Wilson
v. Denver, 1998-NMSC-016, ¶ 43, 125 N.M. 308, 961 P.2d 153 (holding that voting
“based on a majority of those using the ditch for the distribution of water” is
acceptable). In this case, the voters do not represent others. Rather, they represent
their own interests in the use and maintenance of the ditch. 	We conclude that the
purpose of recording the “yeas and nays” of votes is not relevant in this context, where
the recording of the votes would not serve the purpose of greater accountability.
Thus, since the 2010 meeting minutes otherwise substantially complied with the
requirements of the OMA, the 2010 election of Arechuleta and Piña is not void.
{17} 	The Pepers’ second argument is that the present suit is invalid because Piña and
Arechuleta decided to initiate the suit at an unadvertised meeting contrary to the
OMA. 	This argument is unavailing because Section 73-2-64(D) permits the
mayordomo, acting alone, to “apply . . . for an injunction restraining any person from”
interfering with the ditch. 	But see § 73-2-21(B) (stating that the mayordomo acts
under the supervision of the commissioners). Thus, no meeting subject to the OMA
was required for the initiation of the present suit by Piña.
{18} 	Finally, the Pepers argue, as they did in their objections to Piña’s findings, that
“[t]here is no evidence in the record that . . . Pi[ñ]a was in fact elected to office at the
[December] 2011 meeting” and conclude that, because Piña was not elected for the

1We note that Section 73-2-12 provides that association officers shall be elected
“biennially,” which might be construed to indicate that Piña’s election in 2010 was
valid through 2011 and 2012. 	Piña testified, however, that the Association holds
elections every year. It is unclear from the record whether the Association’s bylaws
provide for an annual election schedule. Neither party addresses this issue on appeal.
For the purposes of this appeal, we assume, as it appears the parties do, that an
election in 2011 was necessary in order for Piña to continue as mayordomo in 2012.
2The district court adopted the order as submitted by the Association.	22
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2012 term, he had no authority under Section 73-2-64 to make findings about the
adequacy of the structure or to require compliance with the Association’s bylaws.1
{19} 	The district court’s order on the Pepers’ objections stated that “the [c]ourt does
not find the [o]bjections to be well taken and[] hereby orders the [Pepers] to comply
with the [previous o]rder]” and referenced “the mayordomo” several times. 	But
because the district court expressly declined to determine whether Piña was properly
elected as mayordomo in 2011, the order is ambiguous as to whether the district court
was ordering action by Piña or by the duly elected mayordomo. 2 When an order is
ambiguous, we may examine the district court’s oral rulings “as instructive in
determining the court’s intent.” 	San Pedro Neighborhood Ass’n v. Bd. of Cnty.
Comm’rs of Santa Fe Cnty., 2009-NMCA-045, ¶ 8, 146 N.M. 106, 206 P.3d 1011
(internal quotation marks and citation omitted). 	At the hearing, the district court
stated, “I find [that,] even if [Piña] were not properly elected in 2011, which I am not
making that determination or not, he is the person that the [district c]ourt has charged

12
with reviewing these plans, so he’s got the authority for this case to make these
decisions.” The district court also stated that it was “giving [Piña] th[e] authority [to
review the water structure]” and that “[Piña] has [the district court’s] authority to
decide what is the correct water unit.” We conclude from these statements that Piña
was operating under the authority of the court order, not Section 73-2-64, when he
reviewed the Pepers’ water structure and made findings as to its adequacy.
{20} 	We are cognizant of the fact that a properly elected mayordomo would have had
the authority to review and approve or identify inadequacies in the Pepers’ water
structure even if the district court ordered someone else to do it and that such an order
could therefore conflict with the statute. See § 73-2-21(B)(1) (giving the mayordomo
“the superintendence of all work” on the ditch); § 73-2-64(A) (referencing the “order
of the mayordomo” with respect to breaking, cutting, or stopping the ditch). Here,
however, the Pepers’ argument is that there was no one with the authority given by
statute. 	We conclude that the district court’s order granting Piña the authority to
review the Pepers’ water structure did not contravene the acequia statute in these
circumstances.
{21} 	This conclusion, however, does not resolve the Pepers’ claims that violations
of the OMA occurred in the election of Piña and the commissioners in 2011. There
is no evidence in the record showing that Piña was properly reelected mayordomo

3To the extent that the Association argues that the Pepers failed to timely
challenge the elections under NMSA 1978, Section 73-3-3 (1921), which requires that
a “notice of contest shall be filed within fifteen days after the result of the election is
announced as herein required[,]” we are not persuaded. Section 73-3-3 is inapplicable
to the Pepers’ challenge because NMSA 1978, Section 73-3-11 (1917) states that
“[A]rticle [3] . . . shall [not] apply or be construed to be in force or effect in any of the
following counties, viz.: Dona Ana, Grant, . . . Rio Arriba . . . , as the same existed on
the 11th day of March, 1903.” Since the ditch in question is in Rio Arriba county, the
Pepers were not required to file election challenges within fifteen days of the
announcement of the results.
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after his 2011 term ended. Rather, the district court refused to hear evidence on the
issue altogether and stated explicitly that it was not deciding whether Piña was elected
for the 2012 term. Instead, it ruled that “[t]he [district c]ourt is not changing its mind
on its prior [o]rder on all issues.” 	But because the prior order addressed only the
Pepers’ arguments as to OMA violations relevant to the 2010 elections and Piña’s and
Arechuleta’s standing to bring suit, we conclude that the district court neither heard
nor decided the question of whether the Association’s officers were properly elected
in 2011. Hence, we remand to the district court for findings on whether the election
of officers in 2011 was properly conducted under the OMA.3
{22} 	In conclusion, the minutes of the 2010 meeting at which Arechuleta and Piña
were elected commissioner and mayordomo, respectively, substantially complied with
the OMA and therefore the 2010 elections are not void. Thus, Piña had standing to
initiate the present suit. Furthermore, no meeting subject to the OMA was required
for Piña to do so, since Section 73-2-64(D) permits the mayordomo to pursue an

14
injunction to prevent interference with an acequia. In addition, Piña was operating
under the authority of a court order when he made findings as to the Pepers’ water
structure. The district court’s orders on these issues are affirmed. Finally, because
the district court did not hear or rule on the Pepers’ claims that the 2011 elections
violated the OMA, we remand for further proceedings on that issue. If the Pepers are
able on remand to establish that the 2011 elections were held in violation of the OMA,
they may be entitled to attorney fees under Section 10-5-3(C).
{23} 	We turn now to the question of whether the grant of attorney fees to the
Association was proper. The district court awarded the Association $21,919.93 in
attorney fees based on Sections 73-2-23 and 73-2-64(D) of the acequia statute. On
appeal, we review the district court’s grant or denial of attorney fees for an abuse of
discretion. See In re N.M. Indirect Purchasers Microsoft Corp., 2007-NMCA-007,
¶ 6, 140 N.M. 879, 149 P.3d 976. We conclude that the district court misconstrued
Sections 73-2-23 and 73-2-64(D) and reverse the grant of attorney fees to the
Association. 	See N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 7,
127 N.M. 654, 986 P.2d 450 (stating that a decision based on a “misapprehension of
the law” is an abuse of discretion (internal quotation marks and citation omitted)).
{24} 	“New Mexico adheres to the so-called American rule that, absent statutory or
other authority, litigants are responsible for their own attorney[] fees.” 	Id. ¶ 9
(internal quotation marks and citation omitted). 	In addition, “‘[c]osts’ are not

15
generally understood as including attorney[] fees, for purposes of statutes allowing
awards of costs, unless the statute or court rule specifically defines costs as including
attorney[] fees.” 20 Am. Jur. 2d Costs § 63 (2013) (footnote omitted); see N.M. Right
to Choose/NARAL, 1999-NMSC-028, ¶ 4 (treating attorney fees and costs as distinct);
State ex rel. Roberson v. Bd. of Educ. of City of Santa Fe, 1962-NMSC-064, ¶ 21, 70
N.M. 261, 372 P.2d 832. 	Finally, “[i]n view of the well-established ‘American
Rule’[,] . . . courts have often stated that statutory attorney[] fees may be awarded only
when ‘expressly,’ ‘explicitly,’ or ‘specifically’ authorized by statute, and that statutes
allowing an award of fees will be strictly construed.” 1 Robert L. Rossi, Recovery of
Attorney[] Fees from Non-Client Parties, § 6:7 (3d ed. 2013) (footnotes omitted); see
Duncan v. Henington, 1992-NMSC-043, ¶ 5, 114 N.M. 100, 835 P.2d 816 (“[I]n
general, statutes in derogation of the common law are to be construed strictly. Under
this standard, a court will not find the common law superseded unless it appears that
it was the legislative intent, which is to be determined primarily by the language of the
statute itself.” (citation omitted)).
{25} 	Here, the district court relied on Section 73-2-23, which states,
The commissioner of each acequia shall be entitled to actual
expenses incurred while in the performance of their [his] duties.
Provided that the maximum rates which may be allowed for travel by
privately owned conveyances shall be eight (8) cents per mile and
provided further that if more than one commissioner shall travel in the
same privately owned conveyances such mileage shall be charged but
once.

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{26} 	It also relied on Section 73-2-64(D), which states that “[t]he remedies provided
for in this section shall not be construed as limiting the right of the party bringing the
civil or criminal complaint from seeking damages.”
{27} 	There is no mention of attorney fees in these sections. Rather, the implication
of Section 73-2-23 is that the expenses incurred by commissioners will be reimbursed
by the Association. In any case, the mere use of the words “expenses” or “damages”
is not sufficient to overcome the “American rule.” 	“If the legislature had desired
attorney fees to be reimbursed in this type of case, . . . it would have expressly so
provided.” 	State ex rel. Roberson, 1962-NMSC-064, ¶ 22 (affirming denial of
attorney fees where the applicable statute permitted award of “damages which [the
prevailing party] has sustained, together with costs and disbursements”); see id. ¶ 16
(internal quotation marks and citation omitted); see, e.g., NMSA 1978, § 39-2-1
(1977) (explicitly authorizing attorney fees and costs); NMSA 1978, § 10-15-3(C)
(1997) (same). Thus, the award of attorney fees to the Association is reversed.
CONCLUSION
{28} 	For the foregoing reasons, we affirm the district court’s rulings as to the
mayordomo’s standing and authority to file the petition and Piña’s authority to issue
findings of inadequacies in the Pepers’ water structure. The grant of attorney fees to
the Association is reversed. 	Finally, we remand for proceedings on the issue of
whether the Association’s elections for 2012 officers complied with the OMA.

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{29} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
_________________________________
CYNTHIA A. FRY, Judge
_________________________________
J. MILES HANISEE, Judge