In Re: State Of NM, et al v. Aragon, et al

Filing 11205

ORDER by Magistrate Judge Kirtan Khalsa denying 11189 State of New Mexico's Motion in Limine to Prohibit Testimony Regarding "Oral Family History" in Rio Chama, Section 3, Rio Cebolla Subfiles. (jdm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
STATE OF NEW MEXICO ex rel.
State Engineer, et al.,
69cv07941 MV/KK
Rio Chama Adjudication
Plaintiffs,
Section 3, Rio Cebolla
v.
Subfile Nos.
ROMAN ARAGON, et al.,
Defendants.

CHCB-001-0007
CHCB-002-0001B
CHCB-002-0002C
CHCB-002-0009

MEMORANDUM OPINION AND ORDER DENYING STATE’S MOTION IN LIMINE
TO PROHIBIT TESTIMONY REGARDING “ORAL FAMILY HISTORY”
THIS MATTER is before the Court on the State’s Motion In Limine to Prohibit
Testimony Regarding “Oral Family History” in Rio Chama, Section 3, Rio Cebolla Subfiles,
Doc. 11189, filed November 16, 2016.
The State moves the Court “to prohibit testimony based on ‘oral family history’ as a
source of authority at trial” on the grounds that “any testimony regarding ‘oral family history’ is
clearly hearsay and none of the enumerated exceptions to the rule against hearsay applies in this
case.” Motion at 1, 4. The State discusses why the following hearsay exceptions are not
applicable to oral family history: Fed. R. Evid. 803(11) Records of Religious Organizations
Concerning Personal or Family History; Fed. R. Evid. 803(13) Family Records; Fed. R. Evid.
803(19) Reputation Concerning Personal or Family History; and Fed. R. Evid. 803(20)
Reputation Concerning Boundaries or General History. Defendants contend that Fed. R. Evid.
803(20) Reputation Concerning Boundaries or General History allows oral family history to be
admitted. Response at 1, Doc. 11195. Because Defendants do not contend that the other hearsay
exceptions apply, the Court will only address the hearsay exception regarding Reputation

Concerning Boundaries or General History.
The hearsay exception for Reputation Concerning Boundaries or General History states:
“A reputation in a community--arising before the controversy--concerning boundaries of land in
the community or customs that affect the land, or concerning general historical events important
to that community, state, or nation.” Fed. R. Evid. 803(20). The Advisory Committee Notes for
this rule state:
Trustworthiness in reputation evidence is found “when the topic is such that the
facts are likely to have been inquired about and that persons having personal
knowledge have disclosed facts which have thus been discussed in the
community; and thus the community's conclusion, if any has been formed, is
likely to be a trustworthy one.” 5 Wigmore § 1580, p. 444, and see also § 1583.
On this common foundation, reputation as to land boundaries, customs, general
history, character, and marriage have come to be regarded as admissible. The
breadth of the underlying principle suggests the formulation of an equally broad
exception, but tradition has in fact been much narrower and more particularized,
and this is the pattern of these exceptions in the rule.
....
The first portion of Exception [paragraph] (20) is based upon the general
admissibility of evidence of reputation as to land boundaries and land customs,
expanded in this country to include private as well as public boundaries.
McCormick § 299, p. 625. The reputation is required to antedate the controversy,
though not to be ancient. The second portion is likewise supported by authority,
id., and is designed to facilitate proof of events when judicial notice is not
available. The historical character of the subject matter dispenses with any need
that the reputation antedate the controversy with respect to which it is offered.
Fed. R. Evid. 803 advisory committee’s note (1972 Proposed Rules).
Defendants contend that oral family history is admissible pursuant to Fed. R. Evid.
803(20) Reputation Concerning Boundaries or General History stating that:
customs that affect the land or concerning general historical events important to
that community would include the settlement of Cebolla through the Homestead
Act. This act required that the applicant erect a house, make other improvements
such as the diversion of water and construction of irrigation ditches, the growing
of crops and fencing and the building of barns and corrals for raising livestock.
....
Accordingly, Defendants reject the State’s assertion “. . . that the irrigation
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practices at issue here do not rise to the level of general historical events
important to the community at large and there is no independent historical
evidence to support such a claim.”
....
The large presence of numerous Homestead documents, county records and other
documents filed and archived in the Office of the State Engineer . . . . is collateral
support for the application under Fed. R. Evid. 803(2) of “oral” history, such as
the popular names of acequias, their locations, the fields irrigated by them and
their locations, and the locations of structures on the property such as houses,
barns, corrals and sawmills.
Response at 2-3 (underlining in original).
The State asserts that “while the homesteading and settlement of the Cebolla area might
be considered a general historical event under Fed. R. Evid. 803(20), the irrigation practices of
two families in the community should not be considered such.” Reply at 2. The State also
correctly notes that the Homestead Act does not require or even mention the diversion of water
or the construction of irrigation ditches. See Reply at 2-3. The Homestead Act only required
proof that the applicant “resided upon or cultivated” the land. An Act to secure Homesteads to
actual Settlers on the Public Domain, 12 Stat. 392-393 (May 20, 1862) (repealed 1976). The
State notes that “there is a difference between cultivation and irrigation, as land can be cultivated
without the use of irrigation.” Reply at 3. The State also asserts that “the particular reputation in
the community that the defendants seek to present at trial did not arise before the controversy,
but rather, as a direct result of the controversy before the Court,” and that the “information
contained in [documents filed with the Office of the State Engineer which were commissioned
and signed by many of the residents of the Cebolla community] represents the consensus of the
Cebolla community regarding the irrigation practices of its members at the time the documents
were filed.” Reply at 4.

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The Court will deny the State’s Motion as premature. Defendants seek admission of
reputation evidence concerning customs and general history pursuant to Fed. R. Civ. P. 803(20).
To qualify for admission under Rule 803(20), the testimony must report a general
consensus in the community, an assertion of the group as opposed to one or a few
of its constituents. The fact that the information has been considered by and was
subject to the general scrutiny of the community is an essential guarantee of
reliability for the exception., Consequently, if the statement is a personal
assertion of a single declarant, it will not be admitted under Rule 803(20).
Rule 803(20) covers reputation concerning “general historical events” important
to the community, as well as reputation concerning property boundaries and
customs. To qualify under this prong of the exception, the proponent must make
a showing that the matter on which reputation is offered is one of general concern
throughout the community. Otherwise, the discussion within the community, on
which reliability is based, may not have been sufficiently considered.
4 Federal Rules of Evidence Manual § 803.02[21] (10th ed. 2011). Under Rule 104(a) of the
Federal Rules of Evidence, preliminary questions about whether evidence is admissible must be
decided by the Court, and such matters are established by a preponderance of proof. See
Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). The Court will not rely on the
arguments in the parties’ briefs to determine whether the reputation evidence is admissible, but
instead will give Defendants the opportunity to lay foundation regarding the admissibility of the
reputation evidence at trial, and the State an opportunity to challenge the foundation, before
deciding whether the reputation evidence is admissible.
IT IS ORDERED that the State’s Motion In Limine to Prohibit Testimony Regarding
“Oral Family HIstory” in Rio Chama, Section 3, Rio Cebolla Subfiles, Doc. 11189, filed
November 16, 2016, is DENIED.

______________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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