Gypsum Resources, LLC v. Catherine Masto ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GYPSUM RESOURCES, LLC, a 
Nevada Limited Liability
Company, No. 09-17849
Plaintiff-Appellee, D.C. No.
v. 2:05-cv-00583-
RCJ-LRL
CATHERINE CORTEZ MASTO, in her
District of Nevada,
official capacity as Attorney
General of the State of Nevada  Las Vegas
and her agents and successors, ORDER
Defendant-Appellant, CERTIFYING
QUESTIONS TO
and
THE SUPREME
DAVID ROGER; COUNTY OF CLARK; COURT OF
BOARD OF COUNTY COMMISSIONERS NEVADA
OF THE COUNTY OF CLARK,
Defendants.

Filed October 31, 2011
Before: Richard A. Paez, Marsha S. Berzon, and
Carlos T. Bea, Circuit Judges.
Certification Order
Pursuant to Nevada Rule of Appellate Procedure 5, we
respectfully certify questions to the Nevada Supreme Court.
The answer to these questions will be determinative of the
matter pending before this court, and there is no clearly con-
trolling precedent in the decisions of the Nevada Supreme
Court.
19659
19660 GYPSUM RESOURCES v. MASTO
Submission of this case is vacated and all further proceed-
ings are stayed pending receipt of an answer to the certified
questions. The parties shall notify the Clerk of this court
within one week after the Nevada Supreme Court accepts or
rejects the certified questions, and again within one week after
the Nevada Supreme Court renders its answers.
As further explained below, we respectfully certify the fol-
lowing questions to the Nevada Supreme Court:
1. Does Nevada Senate Bill No. 358 (Act of May 19,
2003, ch. 105, 2003 Nev. Stat. 595) (“SB 358”) violate article
IV, § 20 of the Nevada Constitution?
2. Does SB 358 violate article IV, § 21 of the Nevada
Constitution?
3. Does SB 358 violate article IV, § 25 of the Nevada
Constitution?
4. If SB 358 would otherwise violate article IV, sections
20, 21, or 25 of the Nevada Constitution, does it fall within
an applicable exception and so remain valid?
We recognize that the Nevada Supreme Court may rephrase
the question as it deems necessary. Palmer v. Pioneer Inn
Assocs. Ltd., 59 P.3d 1237, 1238 (Nev. 2002) (rephrasing and
answering our certified question).
Summary and Facts
Defendant-Appellant Catherine Cortez Masto, in her offi-
cial capacity as Attorney General for the State of Nevada,
appeals to this court from an order by the district court grant-
ing a motion for partial summary judgment filed by Plaintiff-
Appellee Gypsum Resources, LLC (“Gypsum”), and denying
Appellant’s cross-motion for partial summary judgment on
the same issues. ER 4-32. The district court held that SB 358
GYPSUM RESOURCES v. MASTO 19661
is unconstitutional under article IV, §§ 20, 21, and 25 of the
Nevada Constitution.1 Gypsum’s remaining claims, including
its federal claims, were dismissed pursuant to a stipulation,
making the order granting partial summary judgment a final
judgment.
In 2003, Gypsum bought 2400 acres in Clark County,
Nevada, on the site of an abandoned gypsum mine. ER 155-
58. Gypsum’s property lies adjacent to the Red Rock Canyon
National Conservation Area of the Spring Mountains National
Recreation Area. ER 156. Gypsum’s land was zoned as a rural
area to allow the building of no more than one house on every
two acres. ER 157. Also in 2003, the local, state and federal
officials discussed the possibility of buying Gypsum’s land to
include it within the Red Rock Canyon National Conservation
Area, but the Bureau of Land Management did not want to
take responsibility for the land due to its damaged condition
from its days as a mine.
Gypsum intended to seek a zoning variance to allow it to
develop the land for both houses and commercial uses. ER
157. Before it could seek such a variance, the Nevada legisla-
ture enacted SB 358.
SB 358 § 8 provides:
With respect to the Spring Mountains National Rec-
reation Area, a local government:
1. Shall not, in regulating the use of those lands:
1
The district court also mentioned Clark County Ordinance No. 2914
(“CCO 2914”) throughout its order. In its final pronouncement, however,
the district court granted Gypsum’s motion for summary judgment as to
causes of action four and five in the complaint. ER 32. Causes of action
four and five relate only to whether SB 358 is unconstitutional. They do
not mention CCO 2914. ER 173-79.
19662 GYPSUM RESOURCES v. MASTO
(a) Increase the number of residential
dwelling units allowed by zoning regula-
tions in existence on the effective date of
this act, unless such an increase can be
accomplished, within a given area, by the
trading of development credits or another
mechanism that allows a greater number of
residential dwelling units to be constructed
in that area without increasing the overall
density of residential dwelling units in that
area;
(b) Establish any new nonresidential zon-
ing districts, other than for public facilities;
or
(c) Expand the size of any nonresidential
zoning district in existence on the effective
date of this act, other than for public facili-
ties.
2. May regulate matters to include, without limita-
tion, landscaping, buffering, screening, signage and
lighting.
3. Retains all other authority regarding planning,
zoning and regulation of uses of land.
SB 358 § 8. The Spring Mountain Recreation Area is located
entirely within Clark County. Pursuant to SB 358, Clark
County enacted CCO 2914, which is virtually identical to SB
358 § 8.
The Nevada Constitution contains the following relevant
sections:
Article IV, §§ 20, 21 and 25 of the Nevada Constitu-
tion provide:
GYPSUM RESOURCES v. MASTO 19663
20. Certain local and special laws prohibited.
The Legislature shall not pass local or special laws
. . . [r]egulating county and township business.
21. General laws to have uniform application.
In all cases enumerated in the preceding section, and
in all other cases where a general law can be made
applicable, all laws shall be general and of uniform
operation throughout the State.
25. Uniform county and township government.
The Legislature shall establish a system of County
and Township Government which shall be uniform
throughout the State.
NEV. CONST. art. IV, §§ 20, 21, 25.
The district court found that SB 358 § 8 violates Article IV,
§§ 20, 21, and 25 of the Nevada Constitution because it con-
stitutes local laws that regulate county business. ER 4-32.
Federal Court Jurisdiction
Because this case now involves solely a state law question,
one obvious question the reader may have is how the case
came to be in our court. The district court had original juris-
diction over this action under 28 U.S.C. § 1331 because Gyp-
sum brought claims under 42 U.S.C. § 1983 alleging that SB
358: (1) violates its federal right to due process under the
Fourteenth Amendment to the United States Constitution by
“eliminating any process by which Plaintiff may apply for
zoning relief available to other property owners, and further
deprive[s] Plaintiff of his right to substantive due process
because the action of defendants is capricious and motivated
by the improper purpose of devaluing Plaintiff’s property;”
19664 GYPSUM RESOURCES v. MASTO
(2) violates its federal right to equal protection under the
Fourteenth Amendment to the United States Constitution of
the laws by treating the zoning of Gypsum’s land differently
from that of all other land located in Nevada; and (3) consti-
tutes an unconstitutional taking of property under the Fifth
and Fourteenth Amendments to the United States Constitu-
tion, alleging that the purpose of SB 358 and CCO 2914 is to
so devalue Gypsum’s property that the state will then be able
to condemn the property at a greatly reduced price. ER 165-
71. The district court thus had supplemental jurisdiction over
Gypsum’s state law claims. 28 U.S.C. § 1367.
In the order under review, filed on November 24, 2009, the
district court not only granted summary judgment in favor of
Gypsum on its state law claims as described above, it also (1)
denied the Attorney General’s motion for summary judgment
on Gypsum’s federal equal protection claim, holding that
there was a triable issue of fact as to whether SB 358 deprived
Gypsum of the equal protection of the laws by treating Gyp-
sum’s land differently from all other land in Nevada; (2)
denied the Attorney General’s cross-motion for summary
judgment on the state law claims that are the subject of this
appeal; and (3) granted the Attorney General’s motion for
partial summary judgment as to Gypsum’s federal substantive
due process claims, holding that Gypsum had no substantive
due process right to apply for a zoning variance. ER 20-28.
After entry of the court’s November 24, 2009 order, the
parties entered into a stipulation on April 22, 2010, in which
Gypsum agreed to dismiss all its remaining federal claims
(the § 1983 claims for equal protection and inverse condem-
nation; the latter had not been the subject of any summary
judgment motion) as moot in light of the district court’s prior
order invalidating SB 358 on state law grounds. Thus, the dis-
trict court’s November 24, 2010 order became final and
appealable, and the only claims left in the case are Gypsum’s
state law claims. See 28 U.S.C. § 1367.
GYPSUM RESOURCES v. MASTO 19665
Because this case now involves the constitutionality of a
Nevada state statute under the Nevada Constitution, we
respectfully request that the Nevada Supreme Court accept
and decide whether SB 358 violates the Nevada Constitution,
art. IV, §§ 20, 21, or 25. We agree that “[t]he written opinion
of the [Nevada] Supreme Court stating the law governing the
questions certified . . . shall be res judicata as to the parties.”
Nev. R. App. P. 5(h).
The Clerk of this court shall forward a copy of this order,
under official seal, to the Nevada Supreme Court, along with
copies of all briefs and excerpts of record that have been filed
with this court.
IT IS SO ORDERED.
Respectfully submitted, Richard A. Paez, Marsha S.
Berzon, and Carlos T. Bea, Circuit Judges.
Parties to the Proceeding and Counsel Listing
Defendant-Appellant: Catherine Cortez Masto, in her
official capacity as Attorney General of the State of
Nevada and her agents and successors.
Attorneys for Defendant-Appellant:
Catherine Cortez Masto
Attorney General
Bryan L. Stockton
Senior Deputy Attorney General
100 North Carson Street
Carson City, Nevada 89701
Tel. (775) 684-1228
Fax: (775) 684-1103
Plaintiff-Appellee: Gypsum Resources, LLC, a
Nevada Limited Liability Company.
19666 GYPSUM RESOURCES v. MASTO
Attorneys for Plaintiff-Appellee:
Edward G. Burg
George M. Soneff
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles, CA 90064-1614
Tel. (310) 312-4000
Fax. (310) 312-4224
Amicus Curiae: The Nevada Legislature
Attorneys for Amicus Curiae:
Brenda J. Erdoes
Legislative Counsel
Kevin C. Powers
Senior Principal Deputy Legislative Counsel
Nevada Legislative Counsel Bureau, Legal Division
401 Carson Street
Carson City, Nevada 89701
Tel. (775) 684-6830
Fax. (775) 684-6761