MASS LAND ACQUISITION, LLC v. DIST. CT. (SIERRA PAC. POWER CO.) , 140 Nev. Adv. Op. No. 67 ( 2024 )

140 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
MASS LAND ACQUISITION, LLC, A No. 85693
NEVADA LIMITED LIABILITY
COMPANY,
Petitioner,
vs.
THE FIRST JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
STOREY; AND THE HONORABLE
OCT 1 7 MA
-"TH A. BRa
JAMES E. WILSON, DISTRICT JUDGE, ELI
ClE UPREME URT
Respondents, BY
-IMF DEPUTY CLERK
and
SIERRA PACIFIC POWER COMPANY,
A NEVADA CORPORATION, D/B/A NV
ENERGY,
Real Party in Interest.
Original petition for a writ of mandamus or prohibition
challenging district court orders denying a motion to dismiss and granting
a motion for immediate occupancy in an eminent domain action.
Petition denied.
Law Offices of Kermitt L. Waters and James J. Leavitt, Kermitt L. Waters,
Michael A. Schneider, and Autumn L. Waters, Las Vegas,
for Petitioner.
Leach Kern Gruchow Anderson Song and Kirby C. Gruchow, Jr., and
Jeremy B. Duke, Las Vegas,
for Real Party in Interest Sierra Pacific Power Company.
Garrett Weir and Cameron Dyer, Carson City,
for Amicus Curiae Public Utilities Commission of Nevada.
Davison Van Cleve, PC, and Robert D. Sweetin, Las Vegas,
for Amicus Curiae Valley Electrical Association, Inc.
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Eglet Adams Eglet Ham He nriod andjoel D. Henriod, Las Vegas,
for Amicus Curiae Southwest Gas Corporation.
Gregory J. Walch and Steven C. Anderson, Las Vegas,
for Amici Curiae Las Vegas Valley Water District and Southern Nevada
Water Authority.
McDonald Carano LLP and Adam Hosmer-Henner, Reno; Vinson & Elkins
LLP and Jeremy C. Marwell, Washington, D.C.,
for Amici Curiae Edison Electric Institute and American Gas Association.
Paul C. Ray, Chtd., and Paul C. Ray, Las Vegas,
for Amicus Curiae Rainbow Bend Homeowners Association.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, PICKERING, J.:
Eminent domain is the power of the government to take private
property for public use without the landowner's consent, provided just
compensation is paid. In Kelo v. City of New London, Connecticut, 545 U.S.
469, 484 (2005), a divided Supreme Court upheld, as a matter of federal
constitutional law, a local government's taking of private property so that
it could then transfer the property to another private party as part of an
economic redevelopment plan. The Kelo decision ignited a national
controversy over the use of eminent domain to benefit private interests,
with many states enacting laws to limit what qualifies as a "public use" for
state eminent domain purposes. In Nevada, voters amended the Nevada
Constitution, effective 2008, to provide: "Public use shall not include the
direct or indirect transfer of any interest in property taken in an eminent
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domain proceeding from one private party to another private party." Nev.
Const. art. 1, § 22(1). The amendment also added procedural protections
for landowners, including the right to have a jury determine "whether the
taking is actually for a public use" before occupancy is granted. Id. art. 1,
§ 22(2).
This matter arises from an eminent domain action that real
party in interest Sierra Pacific Power Company, dba NV Energy, initiated
against petitioner Mass Land Acquisition to take an easement across Mass
Land's property for a natural gas pipeline. NV Energy sought immediate
occupancy. Mass Land moved to dismiss the action, arguing that it would
violate article 1, section 22(1) of the Nevada Constitution for NV Energy, a
for-profit, private company, to use its statutorily delegated eminent domain
power to take and thereby transfer another private party's property to itself.
In the alternative, Mass Land asked for a jury to decide whether the taking
was actually for a public use. The district court denied the motion to dismiss
and granted NV Energy immediate occupancy. Mass Land petitions this
court for a writ of mandamus or prohibition against the district court's
rulings.
We deny Mass Land's petition for extraordinary writ relief.
Nevada statutes delegate the government's eminent domain power to
regulated public utilities for certain specified public uses, including
"[p]ipelines for the transportation of . . . natural gas." NRS 37.010(1)(k); see
NRS 37.0095(2). By its terms, article 1, section 22(1) prohibits taking
private property for purposes of transferring the property to another private
party for their use, protecting Nevadans from takings like the one that
occurred in Kelo. This section does not prohibit a regulated public utility
that "has the power of eminent domain," Nev. Const. art. 1, § 22(8); see NRS
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37.0095(2), from taking property for a natural gas pipeline, a statutorily
recognized public use, see NRS 37.010(1)(k). Indeed, for purposes of takings
law, the Nevada Constitution defines a "private entity that has the power
of eminent domain" as "the government." Nev. Const. art. 1, § 22(8).
Nor was it error for the district court to resolve Mass Land's
public use challenge as a matter of law. While article 1, section 22(2)
entitles the landowner to a pre-occupancy jury determination on "whether
the taking is actually for a public use," that right is subject to ordinary civil
process. A civil case does not go to a jury unless there are issues of fact for
the jury to decide, and the record in this case does not support that any such
factual issues exist as to whether the taking was actually for a public use.
I.
NV Energy is an investor-owned public utility that provides
electricity and natural gas to Nevada consumers. This dispute centers on
its South Reno Second Source Gas Pipeline project (the Project). The Project
called for NV Energy to construct and operate an underground natural gas
distribution pipeline across parts of Storey and Washoe Counties in
northern Nevada. The Project's goal was to improve reliability by lessening
reliance on South Reno's main feeder line, to extend service so propane
consumers in Lockwood could convert to natural gas, and to enhance public
safety by reducing pressure in the area's natural gas distribution lines.
To build the pipeline, NV Energy needed to acquire
construction and right-of-way easements. The pipeline's 16-mile path ran
along an existing utility corridor located on private property, including
property belonging to Mass Land. The easement area on Mass Land's
property was already encumbered with overhead electrical transmission
lines and an effluent water line and had an appraised value of $10,700. NV
Energy negotiated acquisition agreements with the 25 other private
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property owners on the pipeline's path but could not reach agreement with
Mass Land.
When their negotiations failed, NV Energy sued Mass Land in
eminent domain. NV Energy coupled its complaint with a motion for
immediate occupancy so it could complete the construction already
underway on the pipeline. See NRS 37.100(2). In response, Mass Land filed
a motion to dismiss in which it argued that, as a private entity, NV Energy
could not as a matter of law establish the "public use" required to condemn
an easement across Mass Land's property. See Nev. Const. art. 1, §.22(1).
Mass Land separately opposed the motion for immediate occupancy and
asked for a jury to determine whether the taking was actually for a public
use before occupancy was allowed.
The district court denied Mass Land's motion to dismiss and
granted NV Energy's motion for imniediate occupancy. It concluded that,
as a regulated public utility, NV Energy was exercising delegated eminent
domain powers and acting as the government, not as a private party, in
condemning an easement for its natural gas pipeline. See Nev. Const. art.
1, § 22(8); NRS 37.0095(2); NRS 37.010(1)(k). This took the transaction
outside the constitutional prohibition against finding public use when
private property is taken by eminent domain, then transferred to another
private party. See Nev. Const. art. 1, § 22(1). And, since the record
established that the taking was for a natural gas pipeline, which NRS
37.010(1)(k) defines as a public use, the district court rejected Mass Land's
argument that a jury needed to determine public use before occupancy could
occur. The district court conditioned its occupancy order on NV Energy
depositing $10,700 with the court, representing the appraised value of the
easement area, which NV Energy did within days of the order being filed.
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Mass Land petitioned this court for extraordinary writ relief. It
concurrently filed a motion in district court, asking that court to stay
occupancy and any further proceedings pending writ review, which the
district court denied. Mass Land then moved this court to stay the
occupancy order and further district court proceedings, but it withdrew the
motion several days later, before it had been resolved. Next, the parties
stipulated to vacate oral argument so they could explore settlement. When
the parties reported that they had not reached settlement, the matter was
reset for argument. Meanwhile, with no stay in place, NV Energy took
occupancy of Mass Land's property and completed the pipeline. At oral
argument, the parties represented that the pipeline is fully operational and
providing service in northern Nevada.
11.
Mandamus and prohibition are extraordinary remedies.
Traditional mandamus is available to compel the performance of an act the
law requires or to control an arbitrary or capricious abuse of discretion.
Archon Corp. v. Eighth Jud. Dist. Ct., 133 Nev. 816, 819-20, 407 P.3d 702,
706 (2017). Prohibition may issue to halt proceedings the district court
lacks jurisdiction to conduct. Id. For either form of traditional writ to issue,
the case must be one "where there is not a plain, speedy and adequate
remedy in the ordinary course of law." NRS 34.170; NRS 34.330. However,
on rare occasions, this court has also issued advisory mandamus "when an
important issue of law needs clarification and considerations of sound
judicial economy and administration militate in favor of granting the
petition." Archon, 133 Nev. at 820, 407 P.3d at 706 (quoting Int'l Game
Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 197-98, 179 P.3d 556, 559
(2008)); see id. at 823, 407 P.3d at 708 (limiting advisory mandamus to
issues affecting not only the immediate parties but that are of statewide
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concern, whose resolution will also "assist other jurists, parties, or lawyers")
(quoting In re Bushkin Assocs., Inc., 864 F.2d 241, 247 (1st Cir. 1989)).
Whether to consider a petition for extraordinary writ relief is "purely
discretionary with this court." Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674,
677, 818 P.2d 849, 851 (1991).
Mass Land seeks both traditional writ relief and advisory
mandamus. It bases its claim to advisory mandamus on its constitutional
challenge to NV Energy's ability to establish the "public use" required for it
to exercise the power of eminent domain, an issue it asserts is of statewide
public importance. Citing City of Las Vegas Downtown Redevelopment
Agency v. Pappas, 119 Nev. 429, 76 P.3d 1 (2003), Mass Land maintains
that it qualifies for traditional mandamus as well, since the district court's
occupancy order is clearly erroneous and inflicts harm that an appeal after
final judgment cannot adequately remedy.
In Pappas, this court considered an appeal from an order
dismissing an eminent domain action because the condemnor did not
establish public use. The landowners did not bring their motion challenging
public use until three years into the litigation. Id. at 439, 76 P.3d at 8. By
then, the condemnor's motion for immediate occupancy had long since been
granted and a parking garage built on the landowners' property. Id. On
appeal, the condemnor argued that the landowners waived their ability to
challenge public use because they neither opposed the motion for immediate
occupancy in district court on that basis nor sought extraordinary writ relief
from this court after the district court denied their motion to reconsider its
occupancy order. Though this court did not find a waiver, it cautioned that,
in future cases, challenges to public use "must be raised prior to occupancy
and material demolition, alteration or construction on the subject property"
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and that "Mailure to timely assert lack of public use or necessity will
constitute a waiver of these issues." Id. at 441, 76 P.3d at 9. This court
further noted that "Mlle appropriate vehicle for challenging an order
granting a motion for immediate occupancy is a petition for writ relief, as
an appeal of this interlocutory order is unavailable under NRAP 3A(b)." Id.• at 438 n.11, 76 P.3d at 8 n.11.
NV Energy acknowledges that Mass Land raised its "public
use" challenge in district court both by motion to dismiss and in opposing
occupancy, as Pappas directs. NV Energy nonetheless argues that, bécause
it has taken occupancy and built the pipeline, this court cannot grant Mass
Land effective relief, so the petition is moot. Mass Land's withdrawal of its
motion asking this court to stay the district court's occupancy order is
problematic, because it allowed NV Energy to take possession and complete
construction in advance of appellate review, which Pappas suggests could
amount to a waiver of Mass Land's public use challenge.1 But NV Energy
does not argue waiver, and we cannot agree that the petition is moot. Mass
Land's primary challenge is that the taking is unconstitutional, because NV
Energy, as a private entity, cannot establish "public use." This presents an
unsettled question of statewide importance that qualifies for advisory
mandamus. See Sauvageau v. Bailey, 973 N.W.2d 207, 210 (N.D. 2022).
And the matter is not moot. As Mass Land notes, ejectment has been
ordered in comparable cases, see Rhode Island Econ. Dev. Corp. v. The
Parking Co., 892 A.2d 87, 108 (R.I. 2006); Heuer v. City of Cape Girardeau,
1We reject Mass Land's request that we grant writ relief from the
district court's order denying its motion for a stay. Mass Land's remedy was
to seek a stay from this court under NRAP 8, which it waived when it
withdrew its motion for a stay from this court before it could be decided.
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370 S.W.3d 903, 915-16 (Mo. Ct. App. 2012), with restoration and reversion
another possibility, cf. Nev. Const. art. 1, § 22(6). Because Mass Land is not
without a potential remedy for the unconstitutional taking it alleges has
occurred, the dispute remains live. We therefore reject NV Energy's
mootness challenge and address Mass Land's writ petition on the merits.
111.
A.
Eminent domain is the taking of private property for public use,
provided just compensation is paid. See U.S. Const. amend. V ("nor shall
private property be taken for public use, without just compensation"); Nev.
Const. art. 1, § 8(3) ("Private property shall not be taken for public use,
without just compensation having been first made, or secured."). Article 1,
section 22(1) of the Nevada Constitution limits what qualifies as "public
use" for eminent domain purposes. It provides:
Public use shall not include the direct or indirect
transfer of any interest in property taken in an
eminent domain proceeding from one private
party to another private party. In all eminent
domain actions, the government shall have the
burden to prove public use.
Mass Land's principal argument is that this provision prohibits NV Energy
frpm taking an easement across its land. By its reading, when NV Energy,
a private entity, takes private property by eminent domain, it thereby
transfers the property to itself, violating the private-to-private transfer
prohibition in article 1, section 22(1). NV Energy disagrees. It reads article
1, section 22(1) to prohibit the government—or a private entity to whom the
power of eminent domain has been delegated—from taking private property
and then transferring that property to another private party.
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"To determine a constitutional provision's meaning, we turn
first to the provision's language." Miller v. Burk, 124 Nev. 579, 590, 188
P.3d 1112, 1119-20 (2008). If the language is "clear on its face," we do not
go beyond that language to determine meaning. Id. at 590, 188 P.3d at
1120. But "if a constitutional provision's language is ambiguous," we rnay
look to "the provision's history, public policy, and reason to determine" what
the voters likely understood the provision to mean when they adopted it.
Strickland v. Waymire, 126 Nev. 230, 234-35, 235 P.3d 605, 608-09 (2010)
(internal quotation omitted).
The plain text of article 1, section 22(1) supports NV Energy's
reading, not Mass Land's. By its terms, the section excludes from the
definition of "public use" the transfer to a private party of property taken in
eminent domain; it does not prohibit the taking of private property by a
private entity to whom the Legislature has delegated the power of eminent
domain for a statutorily declared public use. While "transfer" and "taking"
both refer to a change in ownership of property, these words have distinct
meanings that suggest a material variation in the use of different yet
similar terms. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 170 (2012) ("[W]here the document has used
one term in one place, and a materially different term in another, the
presumption is that the different term denotes a different idea."). Black's
Law Dictionary defines "transfer" as "No convey or remove from one place
or one person to another; to pass or hand over from one to another, esp. to
change over the possession or control." Transfer, Black's Law Dictionary
(11th ed. 2019). A "taking," by contrast, means "[t]o acquire (property) for
public use by eminent domain ... to seize or condemn property." Take,
Black's Law Dictionary (11th ed. 2019).
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ID) MTh •
Article 1, section 22(1)'s private-party transfer prohibition does
not prohibit a private party to whom the power of eminent domain has been
delegated from taking private property for public use. The use of the past-
tense word "taken" in the same sentence as "transfer" contemplates that the
exclusion refers to property that has already been taken through eminent
domain and that is then subsequently transferred, directly or indirectly, to
a private party. Although NV Energy's taking an easement across Mass
Land's property results in the conveyance of a property interest from one
private party (Mass Land) to another (NV Energy), the private-transfer
exclusion is not triggered because the exclusion only applies to transfers
that occur after the property has been taken by eminent domain. The
exclusion in article 1, section 22(1) would be implicated if NV Energy took
the property, then transferred it to another private party for their private
use.2 But here, no subsequent transfer to a private party followed the
taking, and NV Energy took the property for a natural gas pipeline, a
statutorily recognized public use.
To read article 1, section 22(1) as Mass Land does would
eliminate the government's authority to delegate eminent domain power to
private entities, such as common carriers and public utilities, when needed
for public use, such as the pipeline in this case. This would create a direct
conflict between article 1, section 22(1) and article 1, section 22(8). The
latter provision recognizes that a private entity may exercise delegated
2 We express no opinion on NRS 37.010(2), which purports to authorize
certain post-taking transfers to private parties of property taken by eminent
domain. This case does not implicate that statute since it does not involve
a post-taking transfer.
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powers of eminent domain to acquire property for public use and that, when
that occurs, the private entity acts as the government:
For all provisions contained in this section,
government shall be defined as the State of Nevada,
its political subdivisions, agencies, any public or
private agent acting on their behalf, and any public
or private entity that has the power of eminent
dornain.
Nev. Const. art. 1, § 22(8) (emphases added). There would be no.reason for
section 22(8) to include a "private entity that has the power of eminent
domain" in its definition of "government" if, as Mass Land maintains,
section 22(1) categorically precludes a private entity from establishing the
public use required to take private property by eminent domain. "In
expounding a constitutional provision such construction should be
employed as will prevent any clause, sentence or word from being
superfluous, void or insignificant." Youngs v. Hall, 9 Nev. 212, 222 (1874).
Both subsections (1) and (8) of article 1, section 22 were enacted
at the same time, as part of the People's Initiative to Stop the Taking of Our
Land, or "PISTOL." Contemporaneous amendments to constitutional text
are construed in pari materia, as one text, Patton u. United States, 281 U.S.
276, 298 (1930), overruled on other grounds by Williams E.). Florida, 399 U.S.
78, 92 (1970), "so as to give effect to and harmonize each provision,"
Nevadans for Nev. v. Beers, 122 Nev. 930, 944, 142 P.3d 339, 348 (2006).
Reading article 1, section 22(1) to distinguish between the taking of private
property by eminent domain and its subsequent transfer to another private
party harmonizes it with article 1, section 22(8), which recognizes the long-
standing rule that the power of eminent domain "can be exercised either by
public officials or by private parties to whom the power has been delegated."
PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 487 (2021).
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NRS 37.0095(2) preexisted the PISTOL initiative, see 1997 Nev.
Stat., ch. 330, § 1, at 1224-25, and is consistent with article 1, sections 22(1)
and 22(8). This statute provides that "the power of eminent domain may be
exercised by a person who is not a public agency pursuant to . . . paragraphs
(g) [and] (k) . . . of subsection 1 of NRS 37.010," which in turn provide that
"the right of eminent domain may be exercised in behalf of the following
public uses: . . . (g) [p]ublic utilities [and] (k) . . . [p]ipelines for the
transportation of... natural gas, whether interstate or intrastate."
Although it is a private entity, NV Energy is also a highly regulated public
utility, providing heat, light, and power for use by the public. NRS
704.020(2); see NRS 704.040(1) (tasking public utilities with delivering
"reasonably adequate service and facilities" at "just and reasonable" rates).
Under NRS 37.0095(2) and NRS 37.010(1)(k), NV Energy "has the power of
eminent domain" and so is defined as the "government" by article 1, section
22(8) in condemning an easement across Mass Land's property for an
intrastate natural gas distribution pipeline.
Although Mass Land argues otherwise, our reading of article 1,
section 22(1) aligns with its history. Voters added this provision to the
Nevada Constitution as part of the PISTOL initiative, which they passed in
response to the controversial Kelo and Pappas decisions.3 In Kelo, the
Supreme Court found "public use" when the government condemned private
property for purposes of transferring it to a private developer as part of an
3See Nev. Statewide Ballot Question No. 2, Argument Advocating
Passage, pp. 9-10 (2006), https://www.leg.state.nv.us/Division/Research/
VoteNV/BallotQuestions/2006.pdf (last visited Sept. 23, 2024); Nev.
Statewide Ballot Question No. 2, Argument Advocating Passage,
pp. 5-6 (2008), https://www.leg.state.nv.us/Division/Research/VoteNV/
BallotQuestions/2008.pdf (last visited Sept. 23, 2024).
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economic redevelopment plan. 545 U.S. at 484. In Pappas, this court
similarly found the "public use" requirement satisfied where the
government condemned private property so it could then transfer the
property to another private party in the name of economic redevelopment.
119 Nev. at 434-35, 443, 76 P.3d at 5, 11. Article 1, section 22(1)'s text fits
this history—it excludes from the definition of "public use" the taking of
private property by eminent domain for purposes of transferring that
property to another private party to develop. But neither the text nor the
history of the PISTOL initiative identifies an intention to prohibit the
delegation of eminent domain power to an investor-owned public utility to
take and put property to a statutorily defined public use, such as the natural
gas distribution pipeline in this case. See note 3, supra. On the contrary,
as discussed above, article 1, section 22(8), which was enacted as part of the
PISTOL initiative, expressly recognizes such delegation and exercise of
eminent domain power as preexisting and legitimate.
In Kelo, the Supreme Court emphasized "that nothing in our
opinion precludes any State from placing further restrictions on its exercise
of the takings power." 545 U.S. at 489. More than 40 states, including
Nevada, accepted this invitation and passed laws seeking to reform takings
law and limit the scope of public use to exclude takings of private property
for purposes of transferring that property to another private party. See
James W. Coleman & Alexandra B. Klass, Energy and Erninent Domain,
104 Minn. L. Rev. 659, 661 (2019). The responses varied from state to state.
See 2A Julius L. Sackman, Nichols on Eminent Domain § 7:10 (3d ed. 2024)
(cataloging the different reforms states enacted following Kelo). Of note,
not a single state responded to Kelo by prohibiting investor-owned public
utilities from exercising delegated eminent domain powers to take private
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property for public energy infrastructure purposes. See Coleman & Klass,
104 Minn. L. Rev. at 670.
In sum, article 1, section 22(1) excludes from the definition of
public use the taking of private property for purposes of transferring that
property directly or indirectly to another private party for development.
This exclusion does not preclude an investor-owned public utility from
exercising its delegated power of eminent domain to take an easement
across property for an intrastate natural gas distribution pipeline.
B.
The district court granted NV Energy's motion for immediate
occupancy without convening a jury to decide "whether the taking is
actually for a public use." Mass Land contends that this violated article 1,
section 22(2) of the Nevada Constitution, which provides:
In all eminent domain actions, prior to the
government's occupancy, a property owner shall be
given copies of all appraisals by the government
and shall be entitled, at the property owner's
election, to a separate and distinct determination by
a district court jury, as to whether the taking is
actually for a public use.
(emphases added). Although NV Energy and its amici argue otherwise, this
provision gives a property owner the right, on demand, to have a jury
determine questions of fact as to whether the proposed taking was
"actually" for a public use. See Strickland, 126 Nev. at 236, 235 P.3d at 610(interpreting "actually" as used in another provision of the Nevada
Constitution to mean "as an actual or existing fact; really") (internal
quotation omitted). The power to decide questions of law, however, remains
with the court, which may also decide questions of fact when no jury demand
is made. See NRS 37.100(3) ("At the occupancy hearing, the court shall
make a separate and distinct determination as to whether the property is
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being taken for a public use, pursuant to NRS 37.010, if the defendant
requests such a determination.").
In our legal system, juries function as finders of fact. This
means that the jury's role is to examine conflicting evidence and decide
wherein the truth lies. An issue of fact that a jury could decide in the
occupancy context would be whether a claimed public use is a pretext or
sham, such that the taking is not "actually" for a public use. See Kelo, 545
U.S. at 478 ("Nor would the City be allowed to take property under the mere
pretext of a public use, when its actual purpose was to bestow a private
benefit."). In contrast, judges, not juries, decide questions of law and
instruct jurors on what law to apply. See Nev. Const. art. 6, § 12 ("Judges
shall not charge juries in respect to matters of fact, but may state the
testimony and declare the law."). It thus was for the court, not a jury, to
decide the central legal question Mass Land raised as to whether article 1,
section 22 allows a privately owned public utility to take an easement across
private land for a natural gas pipeline.
The hypothetical existence of a question of fact in a civil case
does not permit a court to call citizens to the courthouse and impanel a jury.
For the jury trial right to arise, there must be genuine issues of material
fact for the jury to decide. See Zamora v. Price, 125 Nev. 388, 392, 213 P.3d
490, 493 (2009) (stating that in a civil case the constitution "guarantees the
right to have factual issues determined by a jury") (citing Nev. Const. art.
1, § 3); Adams v. Smith, 19 Nev. 259, 271, 9 P. 337, 341 (1886) (noting that
in civil cases juries decide "material disputed questions of fact" but not
questions of law or uncontroverted facts) (construing Nev. Const. art. 6,
§ 12); cf. NRCP 56 (providing that summary judgment may be entered
where there are no genuine issues of material fact for a jury to decide).
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The record in this case does not support that there are genuine
issues of material fact "as to whether the taking is actually for a public use."
In exercising its delegated eminent domain power, NV Energy acted as the
government, Nev. Const. art. 1, § 22(8), so it had "the burden to prove public
use." Id. art. 1, § 22(1). NV Energy verified its complaint and supported its
motion for immediate occupancy pursuant to NRS 37.100 with affidavits
and evidence about the purpose of and need for the Project. These materials
included excerpts from the proceeding NV Energy initially filed with the
Nevada Public Utilities Commission (PUC) un.der the Utility
Environmental Protection Act (UEPA) for permission to construct the
pipeline, see NRS 704.820-.900, which the PUC provisionally approved
subject to certain specialized permitting requirements. Together, these
submissions sufficiently established public use under NRS 37.0095(2) and
NRS 37.010(1)(k) for the court to decide the issue in NV Energy's favor as a
matter of law, absent contrary evidence from Mass Land.
In its petition for extraordinary writ relief, Mass Land
identifies two issues it contends present "substantial factual questions" as
to whether the taking was "actually for a public use," entitling it to a jury
under article 1, section 22(2). First, it points to the fact that NV Energy
proceeded with construction of the pipeline despite not obtaining the
specialized permits on which. the PUC conditioned its preliminary approval
under the UEPA. But the UEPA requirements only apply to "gas
transmission lines," not to gas distribution lines. NRS 704.860(3) (emphasis
added) (defining "utility facility" to include "gas transmission lines"); see
NRS 704.865 (limiting UEPA's approval requirement to construction of a
"utility facility"). While NV Energy initially applied to the PUC for a UEPA
permit as a precautionary measure, it withdrew the application once it
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determined that the Project's natural gas distribution line did not require
UEPA permitting. The record contains no evidence that the portion of the
pipeline that crosses Mass Land's property is not, in fact, a gas distribution
line and thus outside UEPA's permitting requirements as a matter of law.
The lack of a UEPA permit thus does not raise a genuine issue of material
fact as to the Project being "actually for a public use."
Second, Mass Land asserts that the affidavits NV Energy
submitted to the district court conflict as to the pipeline's proposed path.
One affidavit refers to the easement area as encumbered by an electrical
transmission line easement, while another refers to the pipeline's path as
following both an overhead electrical transmission line corridor and an
effluent water line. The maps and property descriptions that the verified
complaint and affidavits authenticate, however, consistently show the
pipeline traveling alongside the overhead transmission line easement, then
along an effluent water line easement to the point of beginning. Again, the
record contains nothing to establish a genuine issue of material fact as to
the path of the easement NV Energy sued Mass Land in eminent domain to
acquire.
Mass Land's final argument is that it was not afforded the time
it needed to generate issues of fact as to whether the taking was "actually
for a public use." While it is correct that the district court set the hearing
close to the time NV Energy served Mass Land with its complaint, the
district court then gave Mass Land additional time for briefing and
supplemental briefing, during which time Mass Land retained an expert to
review both this case and the PUC's UEPA materials and to submit an
affidavit as to the latter. Despite this, Mass Land neither initiated
discovery nor identified the facts on which it needed to take discovery. With
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no stay in place, the pipeline has been built. Yet, at oral argument, Mass
Land could not identify any potential issues of fact for a jury to determine
beyond the UEPA and affidavit claims just discussed. Mass Land thus has
not shown a basis for writ relief as to its jury demand.
CONCLUSION
For the reasons stated above, we deny Mass Land's petition for
extraordinary writ relief.
We concur:
, C.J.
Cadish
Stiglich
J.
Herndon
Lee
Parraguirre
Bell
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