October 25, 2018- Corlinda H. Lujan v. Acequia Mesa Del Medio, No. A-1-CA-35203

A-1-CA-35203Nmctapp

Texte intégral

·I 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ____ _
3 Filing Date: October 25, 20 18
4 No. A-1-CA-35203
5 CORLINDA H. LUJAN,
6 IDA M. LUJAN,-and PABLO LUJAN,
7 	Plaintiffs-Appellants,
8 v.
9 ACEQUIA MESA DEL MEDIO, A NEW
10 MEXICO COMMUNitY DITCH
11 	ASSOCIATION, et al.,
12 	Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
FILED
OCT 2 5 2018
13 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
14 Francis J. Mathew, District Judge
15 	Montgomery & Andrews, P.A.
16 Randy S. Bartell
17 Santa Fe, NM
18 	Ida M. Lujan
19 Santa Fe, NM
20 for Appeliants
21 	Humphrey & Ode, P.C.
22 Mary E. Humphrey
23 	El Prado, NM
24 Peter B. Shoenfeld, P.A.
25 	Santa Fe, NM
26 for Appellees
1 	OPINION
2 FRENCH, Judge.
3 	{1} 	Corlinda Lujan appeals from the dismissal of her second amended complaint
4 (Complaint) in which she sought declaratory relief, injunctive relief, and monetary
5 damages. Her Complaint alleges, among other things, that she is entitled to the use
6 of water appurtenant to 42.2 acres ofland from the Rio Puerco de Chama based upon
7 a decree issued by the district court in Rio Arriba County in 1962 (the Chacon
8 Decree), and that the Acequia Mesa Del Medio (the Acequia) has consistently
9 refused to distribute water according to the terms of the Chacon Decree. The district
10 court 	dismissed 	Lujan's 	Complaint 	for 	lack 	of 	subject 	matter 	jurisdiction,
11 	concluding that the federal district court adjudicating all water rights of the Rio
12 Chama stream system (the adjudication court), which includes the Rio Puerco de
13 	Chama, has exclusive jurisdiction over Plaintiff's claims. See State ex ref. State
14 Engineer v. Aragon, United States District Court Cause No. 69cv07941 BB (mem.
15 	op. and order) (D.N.M. Jan. 31, 2011). We reverse, concluding that the district court
16 has jurisdiction over the subject matter of Lujan's Complaint.
17 BACKGROUND
18 Procedural History Concerning the Chama General Stream System
19 Adjudication
20 	{2} 	In 1948, the Acequia, two other acequias, and members of the acequias
21 	initiated a water rights adjudication for the Rio Puerco in the district court in Rio
1 Arriba County, (hereinafter the Chacon lawsuit). Chacon v. Chacon, Rio Arriba
2 County Cause No. 4922. By 1961, Lujan came to own· a tract ofland that is irrigated
3 by the water diverted by the Acequia from the Rio Puerco. The Chacon court issued
4 the Chacon Decree one year later, which "determine[d] the rights of the respective
5 claimants to divert and beneficially use the waters of the Rio Puerco de Chama and
6 its tributaries[.]" The Chacon Decree provides the names of the claimants entitled to
7 the use of the water who are members of the Acequia, the legal description of the
8 land they own, and the number of acres of land they own, and thereby fixes and
9 determines the rights to the water that is appurtenant to the described land. It lists
10 Lujan as owning 42.2 acres ofland as mapped by the hydrographic survey prepared
11 	by the State Engineer during the first phase ofthe adjudication (Map 19).
12 {3} 	Several years after the issuance of the Chacon Decree, the State Engineer
13 	moved to consolidate the ongoing Chacon lawsuit with another suit, State of New
14 Mexico v. Ramon Aragon, Rio Arriba County- Cause No. 8294, to determine the
15 	claims to all water rights of the Rio Chama stream system because the Rio Puerco is
16 a tributary of the Rio Chama. Accordingly, Chacon was consolidated with Aragon
17 and one year later, the Aragon court ordered that all ofthe preliminary, interlocutory,
18 and final orders entered in Chacon be "confirmed and adopted a~ if originally entered
19 herein[.]" The order specifically addresses the Chacon Decree, referring to it as "the
20 Partial Final Decree in the Rio Puerco de Chama section[.]" The order states that the
2
1 Chacon Decree is a final and appealable order that "defin[es] the rights of the
2 [claimants] as against the State of New Mexico" and "as between and among all
3 [claimants] inter se, in the various sub-files in this cause[.]" The Chacon Decree was
4 renamed and entitled "Partial Final Judgment and Decree Relating to the Public
5 Waters of the Rio Puerco de Chama." Aragon was then removed to federal court
6 (adjudication 	court), 	where 	it continues 	as 	an 	active 	general 	stream 	system
7 adjudication. See Aragon, United States District Court Cause No. 69cv7941 BB
8 (mem. op. and order) (D.N.M. Jan. 31, 2011).
9 Background Pertaining To This Appeal
10 {4} 	In 2011 	Lujan sued the Acequia, the mayordomo, and the officers and
11 	commissioners of the Acequia, alleging that they have not been distributing water
12 for irrigation according to the terms of the Chacon Decree and that the method of
13 	distribution unfairly diminishes her right to water-appurtenant to her 42.2 acres of
14 land as described in the Chacon Decree. Lujan's original complaint sought: (1) a
15 	declaratory judgment recognizing her adjudicated water rights and requiring fair and
16 equal water distribution to all Acequia members in accordance with the Chacon
17 Decree; (2) declarations that the Acequia must comply with statutory provisions
18 relating to acequias and ditches, NMSA 1978, Sections 73-2-1 to 73-2-68 (1851-52,
19 as amended through 2006); and (3) an injunction preventing the Acequia and its
20 	officers and commissioners from otherwise harassing Lujan at Acequia meetings.
3
1 {5} 	The Acequia and other named defendants moved to dismiss the complaint for
2 failure 	to 	join necessary parties, 	arguing that Lujan sought relief under the
3 Declaratory Judgment Act, which requires that all persons "who have or claim any
4 interest which would be affected by the declaration" shall be made parties. NMSA
5 1978, Section 44-6-12 (1975). They argued that the rights of a member to water
6 diverted by the acequia are not proportional to the number of acres ofland a member
7 owns as listed in the Chacon Decree. They ~ontended that Lujan asked the district
8 court to enter a declaration that would change the rights of the acequia members to
9 be proportional to the number of acres adjudicated to the tracts of land they own.
10 According to the Acequia, the changes sought by Lujan would affect the rights of all
11 	members of the Acequia, and possibly adjacent acequias, as they have or may claim
12 to have an interest that would be affected by such a declaration. The Acequia also
13 	argued that in order for Lujan to have water rights, she must be the owner of the land
14 to which the water rights are appurtenant, and that other persons, namely Jose and·
15 Magdalena Martinez, now claim an interest in Lujan's original acreage.
16 	{6} 	The district court granted.the Acequia's motion (the June 2012 order) despite
17 Lujan's opposition to it based upon its finding that Lujan's original complaint sought
18 	several declarations pursuant to the Declaratory Judgment Act. The court found that
19 all 	acequia 	members, 	the 	commissioners 	of two 	adjacent 	acequias, 	and 	the
20 Martinez's "have or claim an interest that would be affected by the declarations"
4
1 sought in her complaint, and she "shall have the opportunity to amend her complaint
2 to join" them. The court allowed her ninety days to amend her complaint and serve
3 the·parties joined.
4 {7} 	. 	Lujan amended the original complaint to include the parties provided in the
5 district court's order (first amended complaint). The first amended complaint also
6 contained additional allegations. One of those allegations claimed that the Acequia
7 held a special meeting to discuss the Acequia's response to the lawsuit, during which
8 it modified its irrigation schedule "for the sole purpose of reducing [Lujan]' s historic
9 irrigation time from [forty-two] hours to [twenty-four] hours," and assigning the
10 eighteen-hour difference to the newly-named Martinez defendants.
11 	{8} 	The Acequia and newly-named defendants (collectively, Defendants) moved
12 to dismiss the first amended complaint for lack of subject matter jurisdiction under
13 	Rule 1:..Q 12(B )( 1) NMRA. They argued that Lujan's first amended complaint hinged
. 14 on two declarations that she sought from the court: ( 1) that she has water rights under
15 the Chacon Decree to irrigate 42.2 acres of land, and (2) that her neighbors, the
16 Martinezes, are not the owners of any of the 42.2 acres of water rights decreed in
17 Lujan's name. Defendants asserted that "such declarations are within the exclusive
18 jurisdiction of the general adjudication court for the Rio Chama stream system."
19 They argued that Lujan claims to have irrigated and continues to irrigate land that is
5
1 not, according to Map 19, shown as irrigated acreage, and that "irrigation water
2 rights are appurtenant to the land on which they are used." They contended:
3 "Resolution 	of 	[Lujan]'s 	complaint 	then 	is 	entirely 	dependent 	upon 	the
4 determination of her claims to the use of water. [Lujan] has now asserted 'error' in
5 the 	underlying 	hydrographic 	survey 	from the 	1950's; 	by 	claiming 	that 	the
6 hydrographic survey is in error, she has invoked the jurisdiction of the general
7 adjudication court, which has exclusive jurisdiction to determine the specific place
8 of use of the land to which [Lujan]'s claimed water rights are appurtenant." In other
9 words, according to Defendants, Lujan sought a re-adjudi cation of all of the rights
10 to the water of the Rio Puerco.
11 	{9} 	In a separate motion, Defendants argued that Rule 1-019(A) NNIRA required
12 Lujan to join the State Engineer and other private parties, and that her failure to do
13 s_o deprived the district court ofjurisdiction because resolution ofher claims requires
14 a change in the location of the adjudicated water rights, which "may only be
15 	accomplished after application to and approval of the state engineer." Again, despite
16 Lujan's opposition to both motions,-in which she argued that Defendants' m_otions
17 are "predicated on their mischaracterization" of her claims as "seeking to re-
18 adjudicate her water rights" and that her claims are "isolated in nature, involve
19 interpretation of her pre-exiting legal rights, and do not concern any issue involved
20 in the Rio 	Chama water rights 	adjudication"-the 	district court agreed with
6
1 Defendants, finding that the State Engineer and other named persons were necessary
2 .parties. The district court concluded that Lujan "shall have sixty (60) days to amend
3 her complaint to join the necessary parties[,]" and that her first amended complaint
4 "shall be dismissed if [she] fail[s] to join the necessary parties" within the time
5 allotted. 	Thereafter, 	Lujan named the 	State 	Engineer 	as 	a 	defendant 	in 	her
6 Complaint, and again sought declaratory relief, injunctive relief, and monetary
7 damages.
8 {tO} 	Defendants moved to dismiss again, continuing to argue that the adjudication
9 court has exclusive jurisdiction over Lujan's claims. The State Engineer also
10 separately moved to dismiss for failure to state a claim upon which relief can be
11 	granted and to be dismissed as a party because the State Engineer has no interest in
12 the suit. In response, Lujan maintained that Defendants mischaracterized her claims
13 	and that she was "not asking th[e c]ourt to adjudicate any water rights at all." Rather,
14 she sought "declarations recognizing rights already determined in the [Chacon
15 Decree] entered" over fifty years ago, and her "sole purpose in seeking such
16 declarations is to ensure the Acequia's fair treatment of her in accordance with the
t7 	law." In support of the State Engineer's motion to be dismissed from the suit, Lujan
18 agreed that her "claims involve personal disputes between members of the Acequia
19 and the legal recognition of water rights adjudicated in the [Chacon] Decree," and
20 	she urged the district court to grant the State Engineer's motion.
7
1 {11} 	After ahearing, the district court granted both the State Engineer's motion,
2 dismissing it as a defendant in the suit, and Defendants' motion to dismiss for lack
3 of subject matter jurisdiction (October 2015 order) It found that resolving the issues
4 surrounding Lujan's water rights would require interpretation of the Chacon Decree.
5 The district court relied upon NMSA 1978, Section 72-4-19 (1907), believing that it
6 provides that th~ adjudication of irrigation water rights calls for the district court to
7 determine the specific tracts 	of land to which the 	irrig?ttion water rights 	are
8 appurtenant, and as it applies to Lujan's claims, requires dismissal for resolution in
9 the adjudication court. Thus, the district court concluded: "Determination of the
10 specific location of the lands with water rights should be in the adjudication court of
11 	the Rio Chama stream system" because "[t]he adjudication court has exclusive
12 jurisdiction to 	make 	determinations 	regarding the 	elements 	of a 	water 	right,
13 	including the specific tract ofland to which an irrigation water right-is appurtenant."
14 The court dismissed Lujan's Complaint "in all things."
15 {12} 	Lujan appeals all three orders: (1) the June 2012 order requiring Lujan to add
16 parties necessary to the resolution of her Complaint under the Declaratory Judgment
17 Act; (2) the February 2015 order requiring Lujan to join the State Engineer and three
18 other specifically named persons as necessary parties under Rule 1-019; and (3) the
19 October 2015 	order dismissing Lujan's Complaint for 	lack of subject matter
8
\
1 jurisdiction because the adjudication court has exclusive jurisdiction over Lujan's
2 claims.
3 DISCUSSION
4 {13} 	First, we address Lujan's argument that the district court, not the adjudication
5 court, has jurisdiction over the subject matter of her Complaint. We then tum to the
6 orders providing leave to join additional parties.
7 I. 	The District Court Has Jurisdiction Over Lujan's Complaint
8 {14} 	We review questions of subject matter jurisdiction de novo. Best v. Marino,
9 2017-NMCA-073, ~ 19,404 P.3d 450, cert. denied, 2018-NMCERT-_ (No. S-1-
10 SC-36586 (Aug. 31, 2017). State district courts are courts of general jurisdiction
11 	"having the power to hear all matters not excepted by the constitution and those
12 matters conferred by law." Id. ~ 20 (internal quotation marks and citation omitted).
13 	The jurisdiction'of adjudication courts with regard to water law, however, is set out
14 in Chapter 72 of our statutes. Adjudication courts have "exclusive jurisdiction to
15 hear and determine all questions necessary for the adjudication of all water rights
16 within the stream system involved[.]" NMSA 1978, § 72-4-17 (1965) (emphasis
17 added). Once all of the rights to the use of the water of the entire stream system have
18 been adjudicated among the claimants, the district court issues a decree. See 	§ 72-
19 4-19. The decree must declare "as to the water right adjudged to each party, the
20 priority, amount, purpose, periods and place of use," 	and for water used for
9
1 irrigation, the decree must specify the tracts ofland to which the right is appurtenant.
2 !d. Thus, once a stream system has been adjudicated or partially adjudicated and a
3 decree issued, jurisdiction over claims related to the enforcement of the decree-as
4 opposed to claims ·seeking an adjudication of the water rights to be decreed-
5 properly rests with the district court. See City of Raton v. 	Vermejo Conservancy
6 Dist., 1984-NMSC-037, ~ 1, 101 N.M. 95, 678 P.2d 1170 (demonstrating the state
7 district court's exercise of its general jurisdiction over a claim· brought by the City
8 ofRaton against a water conservancy district alleging improper withholding of water
9 in excess of senior rights set forth in a decree issued decades prior to the suit, and
10 seeking a declaration of water rights based upon that decree); El Paso & R. I Ry.
11 	Co. v. Dist. Court ofFifth Judicial Dist., 1931-NMSC-055, ~ 21, 28, 36 N.M. 94, 8
12 P .2d 1064 (holding that a state district court cannot exercise its general jurisdictipn
13 	over a claim brought by water rights claimants against the operator of a railroad
14 seeking an injunction of the railroad's use of water where an ongoing general
15 	adjudication has already begun and no decree has been issued); Harkey v. Smith,
16 	1926-NMSC-011, ~ 3, 31 N.M. 521, 247 P. 550 (demonstrating the state district
17 court's exercise of its general jurisdiction over a claim brought by a water rights
18 claimant against another water rights claimant alleging diversion in excess of the
19 amount declared in a decree issued years before).
10
1 {15} 	Lujan argues that the district court has, since entry of the Chacon decree in
2 	1962, jurisdiction to interpret and declare the relative water rights of parties in a
3 given ditch or acequia associated with an adjudicated source, such as the Rio Puerco
4 de Chama section. She contends that, in other cases, district courts have interpreted
5 water rights decrees and determined the current rights of parties to a lawsuit based
6 upon such decrees. Defendants, however, characterize the case differently. They
7 maintain that Lujan's complaint requires the district court to determine the validity
8 of the hydrographic survey and apply it to specific provisions of the Chacon Decree.
9 Specifically, Defendants claim that Lujan seeks a declaration that the Martinezes do
10 not own any ofthe 42.2 acres of land that she claims she possesses accordingto the
11 	Chacon Decree and that resolving the land ownership issue forces the court to
12 determine the place of use of the decreed water rights. Defendants believe that the
13 	determination Lujan seeks will result in either a correction to Map 19 so that it shows
14 the specific tracts ofland that Lujan claims as her place of use, or a correction to the
15 	list of owners in the Chacon Decree. Either way, Defendants argue, "New Mexico
16 law is crystal clear that the adjudication court has exclusive jurisdiction tq make such
17 determinations."
18 {16} 	The outcome of this issue hinges on what exactly Lujan alleges in her
19 Complaint. 	See 	Best, 	2017-NMCA-073, 	~ 20 	("The 	only 	relevant 	inquiry 	in
20 	determining whether the [district] court has subject matter jurisdiction is to ask
11
1 whether the kind of claim advanced falls within the general scope of authority
2 conferred upon [it] by the constitution or statute." (alterations, omission, internal
3 quotation marks, and citations omitted)). Accordingly, we undertake a careful
4 examination 	of Lujan's 	Complaint and conclude that she has 	not sought an
5 adjudication of the water rights to the entire stream system. Rather, that claim was
6 made decades ago by her predecessors-in-interest when they, several other water
7 users, the Acequia, and two other nearby acequias initiated the Chacon lawsuit
8 Lujan's Complaint alleges facts pertaining to the ownership of the land identified in
9 the Chacon Decree as belonging to her and to the distribution of water to acequia
10 members by the Acequia. Generally, she claims that the Acequia has consistently
11 	failed to distribute water in accordance with the Chacon Decree. She also alleges
12 that the Acequia called a special meeting to discuss its response to her original
13 	complaint, and in retaliation, changed its irrigation schedule in order to reduce
14 Lujan's irrigation time. Unrelated to her particular claims involving the Martinezes,
15 	Lujan also alleges that the Acequia amended its bylaws after she filed her original
16 complaint "purposefu~ly and solely" to discriminate against her, applying its new
17 bylaws and method of calculating irrigation hours in a way that negatively impacts
18 	only her right to the use of water, and not any other acequia member. She claims as
19 well that the Acequia engages in other harassing conduct, including removing rocks,
12
1 wooden structures, and headgates from her property, refusing to provide her with the
2 irrigation schedule until after her irrigation date has passed, and refusing to allow
3 her to speak at Acequia meetings.
4 	{17} 	Essentially, Lujan seeks to enjoin the conduct of the Acequia that has resulted
5 in her receiving less than the amount of water allotted to her in the Chacon Decree,
6 that favors some Acequia members over others, and that she alleges constitutes
7 harassment and discrimination. Lujan also sets forth numerous grounds potentially
8 meriting declaratory relief. She requests a declaration from the district court that she
9 has water rights appurtenant to 42.2 acres of land as declared in the Chacon Decree
10 and that the Acequia must divert and distribute water according to the terms of the
11 	Chacon Decree. The Complaint also requests several declarations concerning the
12 internal operations of the Acequia, including its holding of biennial meetings as
13 	required by Section 73-2-12, its imposition of assessments upon Acequia members
14 based upon their adjudicated acreage, and its issuing of bonds according to Section
15 	73-2-12. She also seeks damages based upon the Acequia's interference with her
16 water rights and her inability to irrigate her property.
17 {18} 	Based on the foregoing claims and the relief sought, we conclude that the
18 gravamen of Lujan's Complaint concerns the enforcement of an existing and valid
19 court decree. It does not, as the Acequia argues, call for a "re-adjudication" of
20 Lujan's water rights of a nature that affects all users of the Acequia or the Rio Puerco .
13
1 stream system itself. See United States v. Bluewater-To/tee Irrigation Dist., 580
2 F. Supp. 1434, 1438-41 (D.N.M. 1984) (rejecting the defendant's attempt to recast
3 the plaintiffs complaint in order to achieve removal to federal court, and describing
4 the defendant's characterization of the complaint as being completely in error for
5 having oversimplified the complaint and ignoring the language of the complaint).
6 Rather, the disputes Lujan's Complaint seeks to resolve involve the conduct of
7 private parties governed by a valid court decree and other statutory provisions
8 applicable to acequias and ditch associations. We see nothing within Lujan's
9 Complaint that seeks an adjudication or re-adjudi cation of water rights that would
10 affect the rights of all claimants to the entire stream system of which the Rio Puerco
11 	is a part. See La Madera Cmty. Ditch Ass 'n v. Sandia Peak Ski Co., 1995-NMCA-
r
12 025, ,-r 7, .119 N.M. 591, 893 P.2d 487 (explaining that the plaintiffs cause of action
13 	was not "transformed from one based on trespass ... to one based on an adjudication
14 of water rights against all other appropriators of the water system[]" simply because
15 	the defendant disputed the validity of the plaintiffs water rights).
16 {19} 	Thus~ because Lujan has initiated litigation within a group of users governed
17 as an acequia and under an existing decree, and is not seeking to adjudicate or re-
18 adjudicate water rights of a broader stream system, Lujan's lawsuit falls within the
19 general jurisdiction of the district court, not the adjudication court. Our evaluation
14
1 in this regard is buttressed by the State Engineer's motion to be dismissed as a party
2 on the basis that it has no interest in the litigation or the outcome of Lujan's claims.
3 In a hearing on the motion, the State Engineer's office explained that acequias, under
4 Chapter 73, "can govern their water rights the way they want to[,]" which is
5 "something the [c]ourt can determine without the presence of the State Engineer."
6 The State Engineer is not involved in disputes concerning the water to be distributed
7 to acequia members by the acequia; it is only concerned with the water that is
8 distributed to the acequia at its headgate. Beyond that, the acequia conducts its
9 business ·according 	to 	Chapter 	73. 	We 	agree 	with 	the 	State 	Engineer's
10 characterization of the nature of the dispute in this case.
11 	II. 	Orders to Join Additional Parties
12 	{20} 	Lujan also appeals the June 2012 and February 2015 orders, each of which
13 	concluded that several utmamed parties were necessary to the litigation and required
14 joinder in order for the case to proceed. Each order permitted Lujan time to amend
15 her complaint to join the parties or else, as expressly stated in the February 2015
16 order, Lujan's complaint would be dismissed. She argues that the district court
17 abused its discretion in ordering joinder of these parties because her lawsuit "will
18 not prejudice any legal rights" of the parties named in the orders, as "they will not
19 	'gain or lose' anything through this suit other than [the] protection of[their] already
20 established legal rights[]" set forth in the Chacon Decree.
15
1 {21} 	The district court's orders, including its threat of dismissal, were based on the
2 district court's misinterpretation of the nature of the dispute set out in Lujan's initial
3 complaint, specifically, that Lujan sought enforcement of the Chacon Decree, rather
4 than its re-adjudication. As this misinterpretation formed the foundation of its
5 decision that the additional parties were necessary to the litigation of Plaintiff's
6 claims, we conclude that the district court abused its discretion in ordedng joinder
7 of the parties. See Harrison v. Bd. of Regents of Univ. of N.M, 20 13-NMCA -1 05,
8 ,-[ 14, 311 P.3d 1236 (explaining that a misapprehension of the law constitutes an
9 abuse· of discretion); Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ~ 11,314 P.3d
10 688 ("An abuse of discretion occurs when a ruling is clearly contrary to the logical
11 	conclusions demanded by the facts 	and circumstances 	of the 	case." 	(internal
12 quotation marks and citation omitted)).
13 	{22} 	We therefore remand this case to the district court with instructions to
14 reconsider the necessity of the joined parties based upon Lujan's causes of action
15 and the relief she seeks, including those made pursuant to the Declaratory Judgment
16 Act, her other statutory state law claims, and the requirements of Rule 1-019. On
17 remand, the parties, including Lujan, shall be permitted to file 	such motions
18 necessary to invoke rulings from the district court, establishing the proper parties to
19 the litigation in light of our opinion.
16
1 CONCLUSION
2 	{23} 	We reverse the district court's orders dismissing the suit for lack of subject .
3 matter jurisdiction and ordering the joinder of additional parties, and remand for
4 proceedings consistent with this opinion.
5 {24} 	IT IS SO ORDERED.
6
7
8 WECONCUR:
9}.~
10 J. MILES HANISEE, Judge
17

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