Law and Order Code of the Fort McDowell Yavapai Community, Arizona, Ch. 7.5

Law and Order Code of the Fort McDowell Yavapai Community, Arizona

Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]

CHAPTER 7.5 - CIVIL TRESPASS

PURPOSE § 7.5-1

ART. I.CIVIL TRESPASS:

CIVIL TRESPASS, CIVIL PENALTIES, FORFEITURE AUTHORIZED, JURISDICTION, CIVIL TRESPASS ACTIONS, REMEDIES, REMOVAL OF TRESPASSERS, SEIZURE AND FORFEITURE OF PROPERTY, FORFEITURE PROCEEDINGS, ENFORCEMENT OF CIVIL PENALTIES, ADVOCATE FEES, TIME LIMITATION, AUTHORIZED LAW ENFORCEMENT OFFICERS, §§ 7.5-2 - 7.5-14

Sec. 7.5-1. PURPOSE.

It is the duty and obligation of the Fort McDowell Yavapai Community Council to safeguard, protect, manage, administer and develop the natural resources of Community lands for the sole economic, cultural, and social benefit of the members of the Community. The peace, property, and public safety of all persons, both Indian and non-Indian, may be threatened by disruptive, destructive, negligent, or malicious acts. The Community Council possesses the inherent authority and constitutional obligation to protect the people, property, natural, historic and archeological resources, culture, land, water, riparian rights, livestock, and wildlife from any threat or conduct by any person which might diminish, denigrate, damage, injure, destroy or threaten Community members, their, natural resources, or the social, cultural, religious, political or economic well-being of the Community in any manner. To regulate such threats or conduct, and to provide relief to the Community and its individual members for damages which result therefrom, it is necessary that the provisions of this chapter be enacted to carry out and implement the purpose expressed in this section and to provide for remedies in the nature of civil sanctions and the seizure and forfeiture of property.

ARTICLE I. CIVIL TRESPASS.

Sec. 7.5-2. CIVIL TRESPASS.

A person commits civil trespass if he or she, not being an enrolled member of the Fort McDowell Yavapai Indian Community, enters Community lands or any land to which a life estate, an estate for years, or other possessory interest has been assigned to any person by the Community Council, any authorized subordinate entity of the Council, or the Fort McDowell Housing Authority, without the lawful consent or permission of the Community Council or the person who has such possessory interest in the land, or his designate, and engages in any action or conduct which is or may be detrimental to the interests of the Community or its members as described in Sec. 7.5-1 of this article, including but not limited to:

cuts down, destroys or injures any wood, timber, plant, vegetation, or crops standing upon such land, or carries away or attempts to carry away any wood, timber, plant, crop or other vegetation from such land;
discharges a firearm or releases an arrow from a bow or crossbow for the purpose of engaging in target practice or practice shooting;
engages in any act or attempted act of hunting, trapping or fishing;
digs, takes or carries away, or attempts to dig, take or carry away from Community lands or the land assigned to another as provided above, earth, soil, stone, minerals, attachments, water, or any other natural resource, including objects of historical or archeological interest or significance;
erects, puts up, fastens, prints, or paints upon Community land or the land assigned to another as provided above, any notice, advertisement, sign, or other writing, drawing or printed material designed to communicate to the general public;
dumps, deposits, places, throws or leaves rubbish, refuse, trash, debris, filthy or odoriferous objects, substances or other objects upon a highway, road, or any land;
opens, leaves down, damages or destroys a fence enclosing Community lands or the land assigned to an individual as provided above, or opens a gate, bar, or fence and leaves it open;
damages, destroys, or otherwise injures land, livestock; poultry, buildings, vegetation, crops, equipment or any property belonging to any person or the Community;
permits or allows livestock or any domesticated animal to enter upon or remain upon the land, whether or not such person directly or knowingly allowed such livestock or domesticated animal to enter or remain upon such land;
parks, drives, or allows to be parked or driven any motorized vehicle, including but not limited to all-terrain or any other vehicle designed for off-road recreational use;
refuses to leave land to which he has no reasonable claim or right of possession when requested to do so by any law enforcement officer authorized to enforce the provisions of this Code, or any person who has an assigned possessory interest in such land as provided above, or his designate; or,
any act which does or otherwise would constitute an offense contained in Chapter 6 of this Code or is prohibited by the Tribal Gaming Ordinance and Code, provided that the standard of proof necessary for the court to find the act unlawful under this chapter shall be proof by a preponderance of the evidence, as in other civil cases.
conducts or attempts to conduct any business or commercial activity in violation of the laws, ordinances or resolutions of the Community, or without authority granted by the President or the Community Council, or in violation of applicable state or federal laws.

Sec. 7.5-3 CIVIL PENALTIES.

Any person who as been found by the court to have committed any act of civil trespass within the Fort McDowell Indian reservation shall be liable for:

a civil penalty equal to any actual damages resulting from such act to be paid through the clerk of the court for the benefit of the Community or individual who suffered such damages; and,
a mandatory penalty payable to the Fort McDowell Yavapai Indian Community through its Tribal Business Manager for deposit to the Community's General Fund for the benefit of the Community of not less than fifty dollars ($50.00) nor more than ten thousand dollars ($10,000.00) for each act of civil trespass; and,
punitive damages to be paid through the clerk of the court for the benefit of the Community or the individual who suffered damages as deemed appropriate. by the court for each act of civil trespass found to be intentional or willful, provided such punitive damages shall not exceed three (3) times the amount of actual damages determined pursuant to subsection (a) of this section.

Sec. 7.5-4. FORFEITURE AUTHORIZED.

Any property used or which could reasonably have been used to commit any act of civil trespass, or used in aid of or in conjunction with the commission of an act of civil trespass, or any thing (including but not limited to, wild game and non-game animals, domestic animals, any vegetation or crop, green or dry wood or timber, or any rock or mineral) which was the object of or was intended to be the end result obtained from the commission of an act of civil trespass upon any land within the Fort McDowell Indian reservation shall be subject to forfeiture as provided in this chapter. All forfeiture actions shall be considered in rem, against the property only and not against any person. No person shall be subject to civil penalties as provided in Sec. 7.5-3 merely because of an ownership interest or secured interest in any property subject to forfeiture.
Any game or non-game animal or domestic animal subject to seizure as authorized in subsection A of this section, if injured or dead, shall be destroyed by the Tribal Ranger by any means which will render the hide and flesh of the animal unusable and which will not allow the carcass to constitute a health hazard, as soon as practicable, but in no case more than twenty-four (24) hours after seizure, provided that the seizing law enforcement officer or the Tribal Ranger shall first photograph (by color print still photography or by videotape) the animal at the place where it was seized so as to preserve the scene where the animal was located and serve as evidence in any tribal court action under this Code which may result from the death or injury of such animal.

Sec. 7.5-5. JURISDICTION.

The court shall have jurisdiction to hear all actions properly brought under Article I of this chapter against any person.

Sec. 7.5-6. CIVIL TRESPASS ACTIONS.

An action for civil trespass or forfeiture pursuant to Article I of this chapter shall be commenced by the Tribal Prosecutor or such other person as the Community Council may designate, who shall file a complaint on behalf of the Fort McDowell Yavapai Indian Community. An action may be filed on behalf of any person having an interest in land or property located within the reservation if it is in the best interests of the Community.
Notice of the action shall be given:
1. as provided for in Sec. 5-13 as in other civil actions; or,
2. by any law enforcement officer authorized to enforce the laws and ordinances of the Fort McDowell Yavapai Indian Community, who may issue a civil summons prior to the filing of a complaint alleging civil trespass if such officer has reason to believe that civil trespass has been committed and the person alleged to have committed civil trespass, and to whom such civil summons is issued, is likely to remove himself from the reservation in order to avoid service or for any other reason. A civil summons issued by a law enforcement officer shall specify the date, time and place for a hearing on the action, as well as an allegation specifying the violation.
If a civil summons is issued by a law enforcement officer prior to the filing of a complaint pursuant to subsection B of this section, a complaint must be filed within seven (7) calendar days of the date of issuance unless the seventh day is a Saturday, Sunday or judicial holiday, and then the complaint must be filed by the end of the next judicial day, or the civil summons shall be considered void.
No defendant in an action alleging civil trespass shall be required to answer questions during discovery or at trial (except on cross-examination if the defendant testifies on his own behalf), the answers to which may be inculpatory regarding the alleged act of civil trespass.
In any action for civil trespass, the Community shall have the burden of showing by a preponderance of the evidence that a civil trespass has occurred and that the defendant committed the act of civil trespass. The Community shall not be required to prove specific intent except in cases where punitive damages for intentional conduct are sought.

Sec. 7.5-7. REMEDIES.

After a hearing pursuant to the provisions for civil procedure contained in Chapter 5 of this Code, and upon a finding by the court that civil trespass has occurred and that the defendant did commit the act of civil trespass, the court may issue such order as will provide an appropriate remedy, including but not limited to:

civil money penalties pursuant to Sec. 7.5-3;
forfeiture proceedings in accordance with Sec. 7.5-9 and 7.5-10;
a cease and desist order or other temporary or permanent injunction; and
an order directing the owner of the property in violation to remove or modify the property or take such other action as to remedy the violation.

Sec. 7.5-8. REMOVAL OF TRESPASSERS.

Any person observed or reasonably suspected of unlawfully hunting, fishing, hiking, trapping, camping, cutting or collecting wood, peddling or doing any unauthorized commercial business on any land within the reservation, or otherwise engaging in any activity or conduct proscribed by the provisions of this article, may be forcibly removed and ejected from the reservation by a law enforcement officer.

Sec. 7.5-9. SEIZURE AND FORFEITURE OF PROPERTY.

Any property alleged in a properly filed complaint to be subject to forfeiture pursuant to Sec. 7.5-4 of this chapter may be seized by an authorized law enforcement officer upon order of the court pending disposition of the complaint.
In the court's discretion after a hearing as provided in subsection D of this section, any property seized under this chapter may be released to a lawful owner or claimant upon the posting of a cash bond equal to no less than the value of the property nor more than two (2) times the value of the property. The bond posted shall be available to be levied against if the owner does not return the property to the court upon order, or of the court determines that the property should be forfeited. If the court determines that the property should not be forfeited, any bond posted shall be returned to the party posting it.
Any law enforcement officer authorized to enforce the laws of the Community may, without notice or court order, seize, confiscate and impound any firearm or other weapon, vehicle, or any other property subject to forfeiture under this chapter if:
1. the property seized presents a danger to persons, property, or wildlife within the reservation; or,
2. the property is subject to being removed from the reservation; or,
3. in the case of a firearm, there has been no tribal permit issued authorizing the possession of such firearm on the reservation.
Any party claiming an interest in any property seized without notice or court order may request a court hearing regarding the disposition of such property.

Sec. 7.5-10. FORFEITURE PROCEEDINGS.

Upon a finding that civil trespass has occurred, the court may authorize forfeiture proceedings as set forth in this section.
If found to be necessary, the court may issue a writ of attachment, sequestration, injunction, or other appropriate writ in aid of, or necessary to, the action.
Property subject to forfeiture and not otherwise released to an owner or claimant shall be held for a period of sixty (60) days following a finding of civil trespass, during which period adequate notice in the manner and form prescribed by the court, whether by personal service, regular, certified or registered mail, publication, or otherwise, shall be given to all parties which the court, after reasonable inquiry, has determined to have an interest in the property and pending forfeiture.
During the sixty (60) day period that the property is held, any party claiming an interest in the property may file with the court a claim for the recovery of the property. The court, after a hearing for which the Community and all known interested parties have been given notice, shall order the property restored or transferred to the claimant if such claimant proves by a preponderance of the evidence that:
1. (a) the claimant is a lawful owner of, has a valid, recorded security interest in, or has an ownership interest by operation of law in the property; or,
  
  (b) the possession, use or other act of the claimant is or was lawful;
2. the possession, use, or other act upon which forfeiture is sought was without the knowledge and consent of the claimant; and,
3. the property will not be used to commit future acts of civil trespass on the reservation.
If no claimant provides the proof required in subsection D of this section, the court shall declare the property forfeited to the Fort McDowell YavapaiIndian Community. If the property forfeited is money, currency or other legal tender, the court shall order it released to the Fort McDowell Tribal Business Manager for deposit in the general fund of the Community; otherwise, the court shall order the property:
1. destroyed by the law enforcement agency of the Community; or,
2. sold at public auction with any expenses of keeping and selling such property, and the amount of all valid liens established by a claim filed with the court by a lienholder or other secured party, paid out of the proceeds of the sale, with any balance credited to the general fund of the Community; or,
3. returned to the owner, lienholder or other secured party upon payment of expenses if the property is worthless, encumbered with liens in excess of its value, or otherwise a burdensome asset; or,
4. retained for official Community use with expenses for keeping and transferring such property to be paid by the Community.

Sec. 7.5-11. ENFORCEMENT OF CIVIL PENALTIES.

Any civil penalty imposed as provided under Sec. 7.5-3 of this chapter shall be a judgment against the defendant subject to enforcement, satisfaction or execution by the Tribal Court, and is an obligation of the defendant to the Fort McDowell Yavapai Indian Community. A civil penalty imposed shall be deemed a lien upon any personal or other property of the defendant located within the exterior boundaries of the Fort McDowell Indian reservation.
When necessary, the Fort McDowell Yavapai Indian Community may bring suit or file an action for enforcement of a foreign judgment based on the tribal court judgment in any other court where the defendant or any property belonging to the defendant may be located without the exterior boundaries of the Fort McDowell Indian reservation as provided by the laws of such other jurisdiction.

Sec. 7.5-12. ADVOCATE FEES.

The provisions of Sec. 5-24 (f) of this Code notwithstanding, no party shall recover advocate fees or other court costs in any action for civil trespass or forfeiture under this chapter except as may be provided in another jurisdiction for enforcement of a judgment as provided in Sec. 7.5-11(B) of this chapter.

Sec. 7.5-13. TIME LIMITATION.

An action for civil trespass where any property or thing was not seized must be filed with the court within six (6) months of the date the trespass occurred, was discovered, or reasonably should have been discovered. Any action not filed within such time is barred and the court does not have jurisdiction to hear the action.

Sec. 7.5-14. AUTHORIZED LAW ENFORCEMENT OFFICERS.

The term "law enforcement officer" as used in this Article shall include all persons employed with the United States Department of Interior, Bureau of Indian Affairs, Branch of Law Enforcement Services; Fort McDowell Tribal Police Department; Fort McDowell Tribal Ranger; and such other persons as the Council may authorize by resolution.