In recent news reports we have learned about the contamination of public water sources in West Virginia, and have been alerted to the potential impact of climate change on local water supplies. Who ultimately decides disputes involving the protection, access and consumption of state water resources?
Generally, state courts have jurisdiction over local water rights created by state law. State agencies with environmental and natural resources oversight further regulate water use and consumption policy in compliance with state law. Conflicts involving water on reserved Federal and Indian land are resolved by negotiation and compact with state, federal and tribal authorities.
Colorado and Montana have established Water Courts with exclusive jurisdiction over all water right claims within their respective states. While these Water Courts are fairly new judicial constructs (Colorado, 1969, and Montana, 1979), their creation shares a historical and geographical background.
During the time of western expansion, the scarcity of water limited settlers’ ability to inhabit and develop large tracts of dry, arid land. Conflicts over sharing and apportioning water resources required legal resolution, and a doctrine of “prior appropriation” evolved concurrent with the California gold rush. To process ore, miners had to divert water from streams and rivers. The doctrine of prior appropriation emerged, establishing a simple priority system based upon “first in time, first in right.” Essentially, the miners who had diverted water for beneficial use first had priority claim over others who diverted water later in time. This doctrine remains intact in most western states today.
The seniority system of prior appropriation is based upon physical control and beneficial use of the water source, regardless of actual adjacency of land to water. The person who can assert the claim of using a water source first acquires the right to continued beneficial use and consumption, while the subsequent users can only utilize remaining water. Additional elements of a prior appropriation claim include: the amount of water used, the point of diversion from the natural source, the place where water is ultimately used and any limitations placed upon the water source (e.g., wildlife or plant preservation free from pollution or contamination downstream).
Conversely, in the eastern states, the doctrine of “riparian rights” evolved, and still prevails. This doctrine originated from claims of landowners seeking shared, equitable use of waterways that touched or flowed onto their respective properties. Unlike prior appropriation rights, riparian rights are of equal priority. The water rights attach to an owner’s adjacent land, and cannot be sold or transferred separately. Water rights cannot be lost by non-use of the landowner. During times of water shortages, water is allocated to landowners proportionally.
These two doctrines continue to influence water rights governance, delineated by distinct geographic and historical precedent. Hybrid policies may emerge in courts where “priority in time” or “land with appurtenant water sources” claims are inadequate to resolve complex resource allocation issues across multiple jurisdictions.
Washington state is considering the establishment of an independent Water Court, following the lead of Colorado and Montana. The two state models may vary in structure, but they share a mutual mission of regulating the use and priority claims of local water resources.
In Colorado, the Water Court is a division of the District Court with exclusive powers and jurisdiction. As stated on the Water Court home page:
The Water Right Determination and Administration Act of 1969 created seven water divisions based upon the drainage patterns of various rivers in Colorado. Each water division is staffed with a division engineer, appointed by the state engineer; a water judge, appointed by the Supreme Court; a water referee, appointed by the water judge; and a water clerk, assigned by the district court.
Water judges are district judges appointed by the Supreme Court and have jurisdiction in the determination of water rights, the use and administration of water, and all other water matters within the jurisdiction of the ,water divisions.
To find Colorado Water Court Administrative Orders, Rulings, Court Rules, Forms, and other resources for all seven divisions on CourtReference, simply link here.
In Montana, the Water Court is a single court serving the entire state. As stated on the Montana Water Court home page:
The 1979 Legislature created the Montana Water Court to expedite and facilitate the statewide adjudication of over 219,000 state law-based water rights (generally rights with a pre-July 1973 priority date) and Indian and Federal reserved water rights claims. The Water Court has exclusive jurisdiction over the adjudication of water rights claims.
The Chief Justice of the Montana Supreme Court appoints a Chief Water Judge and Associate Water Judge from a list of nominees submitted by the Judicial Nomination Commission. A division water judge is also designated for each of Montana’s four major water divisions by a majority vote of a committee composed of the District Court Judge from each single-judge judicial district and the Chief District Judge from each multiple-judge judicial district, wholly or partly within each division. The Chief Water Judge appoints Special Masters, referred to as Water Masters, to assist the water judges.
The four major water districts represented are the Upper Missouri Division, the Lower Missouri Division, the Yellowstone Division, and the Clark Fork Division. You can find additional information about the Montana Water Court, including recent filings, cases, the Court calendar, Local Rules, forms, and resource materials on CourtReference, click here.
Whether your state resolves water resource disputes by a court of general jurisdiction or an environmental or natural resources agency, please check CourtReference for additional research resources, including contact information, case records, rules and forms.
Tags: Court Systems
Here at CourtReference, we spend a lot of time looking at court systems, so we get to see types of courts in some states that you may not have in your state – yet. Courts that specialize in a particular area of the law have been around for a long time. Examples are Family Court, Juvenile Court, Tax Court, and Probate Court.
But in the past few decades, courts that specialize in a single type of case have evolved. These highly specialized courts may be a separate court, or a division or program of court of more general jurisdiction. Examples include Commercial Courts, Water Courts, and Environmental Courts. Some specialized courts focus on a particular type of behavior and try to change it through treatment instead of jail; these include Drug Courts, Veterans Courts, Mental Health Courts, and Family Dependency Treatment Courts. Some are so highly specialized that they only exist in a few states (Gun Court) or a single state (Toll Court in Washington State).
Another very busy specialized court in some states is Housing Court. These courts resolve disputes between landlords and tenants, and may also hear code violation cases. As noted in our earlier post about evictions, most such disputes are handled by courts of general jurisdiction or by some local courts of limited geographic jurisdiction. But in areas with a high density of rental properties – and thus a high number of landlord-tenant interactions – a specialized court exists.
A prime example is in New York City, which has a Housing Court division of New York City Civil Court in each of the five New York City boroughs (Manhattan, Brooklyn, Queens, the Bronx, and Staten Island). New York City Housing Courts handle landlord/tenant disputes of any amount, and also handle housing code violations.
The Buffalo Housing Court handles eviction and code violation cases in New York State’s second-largest city, but New York – like most states – does not have housing courts operating statewide.
Massachusetts does have a statewide Housing Court with five regional divisions that have jurisdiction in 11 of the state’s 14 counties. This court has jurisdiction not only over landlord/tenant disputes, but also over all other civil and criminal actions that involve the use of any real property. That means it handles not only evictions and code violations, but also small claims, personal injury cases, property damage, contracts, discrimination, and any other claim arising out of the use of real property.
Other Housing Courts are generally found only in a state’s larger cities. Some examples:
- In Ohio, the Cleveland Municipal Housing Court and the Toledo Municipal Housing and Environmental Court both hear code violation cases as well as landlord/tenant disputes and eviction cases.
- In California, the San Francisco Superior Court’s Civil Division has a Real Propery/Housing Court that hears only landlord-tenant and wrongful foreclosure cases.
- In Minnesota, Housing Courts are found in the populous counties of Hennepin (home of Minneapolis) and Ramsey (home of St. Paul).
- In Connecticut, although there is no separate housing court, the Superior Court in each of the state’s six largest metropolitan areas has a specialized Housing Session that hears only landlord-tenant cases.
In summary, if you live in a small town, your eviction or code violation case is likely to be heard by a county or municipal court that hears many other types of cases. But if you live in a large metropolitan area, there’s a good chance that a specialized Housing Court will handle your case. Find out which courts are where, and what they do, at CourtReference.
Tags: California · Connecticut · Court Systems · Courtreference.com · Massachusetts · Minnesota · New York · Ohio
Last month I published Beyond the Paperwork: Practical Advice for Obtaining a Protection Order on this blog site. This month, as promised, I would like to address some strategies for defending against an order of protection.
As noted in my previous article, there can be grave consequences if a protection order is filed against you. For the purposes of this post, consider a “protection order” the same as a restraining order or no-contact order; the terminology changes depending on your jurisdiction and your relationship to the petitioner.
Protection orders must be issued by a court and are designed to prevent threats or acts of domestic violence, stalking, and harassment by limiting contact with the petitioner/victim.
Typically, the petitioner files for a temporary or emergency order of protection. Only the petitioner is present at the initial hearing and the judge will either grant or deny the request. The judge is likely to err on the side of caution based upon the petitioner’s sole testimony; temporary protection orders are usually granted. A subsequent hearing is then scheduled (within two weeks) to determine if the temporary order should be continued indefinitely. At that time the respondent/defendant can present evidence to counter the petitioner’s claims of threatening or violent behavior.
As a respondent, once you are served, you must abide by the terms of the protection order until the continuation hearing. It does not matter if the temporary order was based upon false or misleading testimony-do NOT contact the petitioner under any circumstances. You could face charges for contempt of court or violation of a protection order, with penalties that include fines and/or incarceration. Any communication with the petitioner before your hearing will all but guarantee a more permanent and restrictive protection order set against you. If others are included in the no contact order (children, other relatives, friends, co-workers) do not make any overtures to them either.
Alternatively, if the petitioner/victim violates the order by reaching out to you, do NOT respond in any way or by any medium. Document any of the petitioner’s attempts to communicate and be prepared to share this information with the court and your attorney, should you retain one. This is a two-way street; no contact means no contact, and both parties must strictly adhere to the terms of the order. If you can demonstrate that the petitioner has made efforts to contact you, such evidence may negate the claim of fear or imminent danger from you.
If possible, hire an attorney to represent you. This is a contested hearing (to continue the protection order), with potentially devastating legal, professional and personal ramifications. If you cannot afford to retain counsel, seek out any low or no cost legal clinics or advocates that may be able to assist or advise you. Use CourtReference to help you begin your search: select your State and County, then choose the “Legal Aid, Lawyer Referral option from the Court Resource Category menu. You may also find links to your local and State Bar Associations under that option offering additional referral services.
In your search you will find many legal and social services advocating for victims of domestic violence. This is a compelling problem for the legal system, and it is understandable that the prevailing public policy is one of prevention and protection.
But, sadly, there are instances of false reporting of domestic violence. The claim is often used for strategic advantage in a divorce or custody dispute, or as a retaliatory gesture in a contentious breakup. It is difficult to refute a claim of “fear” of imminent danger, but it is not futile. You must rally all available defenses to challenge the alleged threats or acts identified in the petition for the temporary order. These will be the same “facts” that are presented at the continuation hearing.
The petition lists specific acts used to justify the creation and continuation of the order. Evaluate each incident and prepare your responses and defenses. Were your actions or behaviors mischaracterized? Particularly for the most egregious offenses alleged, do you have evidence that could rebut the petitioner’s account or perception? If you have witnesses that were present at or around the time of the alleged incident(s), their supporting testimony will be critial in advancing your defense. Evidence that contradicts or discredits the petitioner’s claims of threatening behavior may also include: electronic recordings (video, phone, social media posts, etc.), written witness statements, medical records, phone logs, arrest and conviction records, and law enforcement incident reports. Any credible information you can offer to show that no threatening or violent acts occurred may result in the dismissal of the order.
As mentioned earlier, overtures made by the petitioner after the filing will cast doubt on his or her actual fear of harm from you. Document any communication initiated by the petitioner, particularly any expressions of remorse or regret, or offers to “negotiate” a less harsh contact ban between you.
After preparing your defenses to each incident alleged, anticipate the petitioner’s evidence and testimony. Does the petitioner have credible witnesses to support the claims asserted? If a witness is not believable, do have additional information to impeach his or her character or reputation? What physical evidence can the petitioner present to support continuing the order? As the respondent, you have a right to subpoena any records presented with the original order, and can also compel appearances by the petitioner’s witnesses-including those who have provided written testimony, but who may be reluctant to appear in court.
Regarding your own witness testimony, prepare yourself and those supporting you. Practice what you want to say and what you believe to be your most compelling and persuasive arguments. Make sure your witnesses are comfortable and confident in their testimony. Confirm your witnesses’ availability, and provide transportation or directions to the courthouse if needed.
I will reiterate what I stated in last month’s blog article about demeanor and appearance. Do dress for court with some formality; observe courtroom protocol and show respect for the judge and court personnel. Speak only to the judge unless directed otherwise. Interrupt no one. Speak slowly and clearly, and give complete answers. If you do not understand a question, ask for clarification or simply state that you do not understand. If you or the petitioner require translation services, be sure to request that well in advance of the continuation hearing. In fact, if English is not the petitioner’s first language, it is possible that some of the alleged incidents were not accurately translated in the protection order application or in the charging papers or incident report. If you believe this may be the case, challenge the interpretation and reliability of the initial translations at the hearing.
A final point about demeanor at your hearing. Since you are defending yourself against claims of potentially violent or threatening behavior, you must demonstrate contrary qualities of calmness and restraint. How you conduct yourself at the hearing will weigh heavily upon the judge; keep this foremost in your mind even if you are offended and outraged by the allegations leveled against you.
It is shameless that protection orders are used as retaliatory tools in relationships or for strategic gain in family court. But never dismiss these charges as trifling, or ignore a temporary order and allow it to continue indefinitely by default due to your inaction. You stand to lose significant rights as well as your reputation and status if the order stands.
Did you know that you may lose your right to possess a firearm if you are the subject of a restraining order? Regardless of whether you need a gun for employment (e.g., law enforcement, military), you will forfeit that right in many states and under the federal Violence Against Women Act you will lose the your right to have a gun or ammunition for the duration of the protection order. Also be aware that a protection order is a part of the public record and is generally accessible to anyone from your state court records provider. Potentially your current or future employment could be impacted by this protection order information, as many employers and prospective employers routinely perform background checks. When you submit to a credit check to purchase a home, secure a credit card, or rent an apartment, this disclosure could adversely affect your application. In a divorce, the perception of being a violent spouse could influence support and maintenance decisions, and certainly affect custody assignment and visitation of minor children.
I am sure you can imagine just how damaging the label of “abuser” could be to your professional and personal life. Don’t let a false claim destroy your reputation. If you are facing such an accusation, I implore you to use any and all resources to seek dismissal of the protection order. And good luck!