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1 MSJ

STEVEN B. WOLFSON
2 District Attorney
CIVIL DIVISION
3 State Bar No. 001565
By: ROBERT T. WARHOLA
4 Deputy District Attorney
State Bar No. 004410
5 500 South Grand Central Pkwy.
P. O. Box 552215
6 Las Vegas, Nevada 89155-2215
(702) 455-4761
7 Fax (702) 382-5178
E-Mail: Robert.Warhola@ClarkCountyDA.com
8 Attorneys for Counter-Defendant Clark County

9 DISTRICT COURT
CLARK COUNTY, NEVADA
10
SAVE RED ROCK; DOES I – X; DOE )
11 PARTNERSHIPS I – X; ROE )
CORPORATIONS I – X; ) Case No: A-16-747882
12 ) Dept No: XXX
Counter-plaintiff. )
13 )
vs. ) CLARK COUNTY’S
14 ) MOTION FOR SUMMARY
) JUDGMENT
15 CLARK COUNTY, a political subdivision )
of the State of Nevada, )
16 )
Counter- defendant, )
17 )

18 Counter-Defendant, CLARK COUNTY (the “County”), by and through its


19 undersigned attorneys of record, hereby moves this Honorable Court for summary judgment
20 against Counter-Plaintiff Save Red Rock’s (“SRR”) counterclaims. This motion is made
21 pursuant to NRCP 56, the attached Points and Authorities, and any argument the Court may
22 wish to entertain at the time of the hearing on this matter.
23 DATED this 15th day of June, 2018.
24 STEVEN B. WOLFSON
DISTRICT ATTORNEY
25
By: /s/Robert T. Warhola
26 ROBERT T. WARHOLA
Deputy District Attorney
27
State Bar No. 4410
28 Attorneys for Counter-Defendant Clark County

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1 NOTICE OF MOTION
2 PLEASE TAKE NOTICE that the undersigned will bring the foregoing Motion for
3 Summary Judgment on for hearing on the ______ day of , 2018, in
4 Department XXX of the above-entitled Court at the hour of _____ a.m./p.m., or as soon
5 thereafter as counsel may be heard.
6 DATED this 15th day of June, 2018.
7 STEVEN B. WOLFSON
DISTRICT ATTORNEY
8
By: /s/Robert T. Warhola
9 ROBERT T. WARHOLA
Deputy District Attorney
10 State Bar No. 4410
11 500 South Grand Central Pkwy. 5th Floor
Las Vegas, Nevada 89155-2215
12 Attorneys for Counter-Defendant Clark County
13
14 MEMORANDUM OF LAW
15 I. LEGAL STANDARD
16 Summary judgment is appropriate when the pleadings, depositions, answers to
17 interrogatories, admissions, and affidavits, if any, that are properly before the court
18 demonstrate that no genuine issue of material fact exists, and the moving party is entitled to
19 judgment as a matter of law. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
20 (2005). The substantive law controls which factual disputes are material and will preclude
21 summary judgment; other factual disputes are irrelevant. Id. at 731, 121 P.3d at 1031. A
22 factual dispute is genuine when the evidence is such that a rational trier of fact could return a
23 verdict for the nonmoving party. Id. at 731, 121 P.3d at 1031. While the pleadings and other
24 proof must be construed in a light most favorable to the nonmoving party, that party bears the
25 burden to "do more than simply show that there is some metaphysical doubt" as to the
26 operative facts in order to avoid summary judgment being entered in the moving party's favor.
27 Id. at 732, 121 P.3d at 1030-1031. General allegations and conclusory statements do not create
28 genuine issues of fact. Id. The nonmoving party "must, by affidavit or otherwise, set forth
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1 specific facts demonstrating the existence of a genuine issue for trial or have summary
2 judgment entered against him." Id. The nonmoving party "'is not entitled to build a case on
3 the gossamer threads of whimsy, speculation, and conjecture.'" Id. at 732, 121 P.3d at 1031.
4 II. SRR LACKS STANDING.
5 Under Nevada law, an action must be commenced by the real party in interest—"one
6 who possesses the right to enforce the claim and has a significant interest in the litigation."
7 High Noon At Arlington Ranch Homeowners Ass’n v. Eighth Judicial Dist. Court of Nev., 133
8 Nev.Adv.Rep. 66, 402 P.3d 639, 645 – 646 (2017), citing, Szilagyi v. Testa, 99 Nev. 834, 838,
9 673 P.2d 495, 498 (1983); see also NRCP 17(a). Generally, a party has standing to assert only
10 its own rights and cannot raise the claims of a third party not before the court. Id. However,
11 under NRCP 17(a), "a party authorized by statute may sue in that person's own name without
12 joining the party for whose benefit the action is brought." Thus, a party needs statutory
13 authorization before it can assert a third party's claims. Id.
14 Here, SRR is asserting third party claims without statutory authority. SRR claims to
15 represent “everybody.” Exhibit 1, Fisher Depo., pp. 82:3 – 24. SRR’s President, Ms. Heather
16 Fisher, deposed as SRR’s Person Most Knowledgeable, explained:
17 Q. What do you mean by "everybody"?
18 Ms. Fisher: Because Red Rock Canyon is actually more of an escape for
people that live in the city than it is for people who live out there.
19
Q: So you mean everybody, you mean everybody, just –
20
Ms. Fisher: Everybody. Everybody needs a place to escape to that's safe,
21 unless they don't want to, but I feel like it's a good thing.

22 Q. So when you say "everybody," you really didn't mean only those who
live near Red Rock Canyon, right?
23
Ms. Fisher: No.
24
Q. What do you mean no?
25
Ms. Fisher: I mean everybody can be affected by it.
26
Q. So it would be more accurate if you said Save Red Rock represents the
27 interests of everybody?

28 Ms. Fisher: Everybody.

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1 Exhibit 1, Fisher Depo., pp. 82:3 – 24. SRR is also asserting the claims of the federal
2 government because SRR believes the Bureau of Land Management (“BLM”) is not
3 doing a good enough job in protecting the RRCNCA:
4
Q: So wouldn’t the Bureau of Land Management represent the interests of
5 the canyon?
6
Ms. Fisher: Yes. So would NDOT. So would Clark County. So would the
7 State of Nevada.
8
Q: So it’s your view that the interests of the Red Rock Canyon are not
9 adequately represented?

10
Ms. Fisher: When BLM refuses to take defense on changing stuff that could
11 affect their land, then yes.

12
13 Exhibit 1, Fisher Depo., pp. 85:20 – 86:3.

14 No statutory authority exists for SRR to represent the interests of “everybody.”

15 Further, the BLM has authority under federal law to manage, conserve and protect the

16 RRCNCA. Red Rock Canyon National Conservation Establishment Act of 1990, 101 P.L.

17 621,104 Stat. 3342, Sec. 4(a), Nov. 16, 1990; See also, 43 U.S.C. §§ 1731-1733. SRR has no

18 such statutory authority and therefore lacks standing. Summary judgment should be granted

19 against all of SRR’s claims.

20
21 III. SRR’s OPEN MEETING LAW CLAIMS SHOULD BE DISMISSED.

22 A. The 60-Day Limitation Period Expired And The OML Claims Are Moot.

23 The 60-day limitation period to file an Open Meeting Law claim expired on April 24,
24 2017. NRS 241.037(3)(b)(Feb. 24, 2017 plus 60 days). SRR’s Motion to Amend to add the
25 Open Meeting Law claims was not approved by the Court until May 2, 2017, over one week
26 after the limitations period expired. The Order granting leave to amend was subsequently
27 entered May 10, 2017 and SRR’s Second and Third Amended Counterclaims were filed on
28

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1 May 24, 2017 and September 27, 2017, respectively. Therefore, SRR’s Open Meeting Law
2 claims are barred by the limitations period in NRS 241.037(3)(b).
3 SRR seeks to have the Court declare void the County Commission’s decision to allow
4 Gypsum to withdraw its 2016 Specific Plan application “without prejudice.” Third Amended
5 Counterclaim, pp. 19-22. A withdrawal “without” prejudice means the applicant does not
6 have to wait one year to refile the same application. Clark County Code § 30.16.210(18).
7 Conversely, a withdrawal “with prejudice” means the applicant must wait one-year to refile
8 the same application. Id. The issue is moot because a year has passed since the February 22,
9 2017 hearing. Even if the County Commission’s “without prejudice” decision is declared
10 void, one year has passed so Gypsum would be able to refile the same application at any time
11 anyway.
12
13 B. SRR Admits Its Members Were Allowed To Enter The Commission Chambers
And Speak During The February 22, 2017 Hearing.
14
15 SRR’s Fourth Cause of Action alleges that SRR’s President, Ms. Heather Fisher, and
16 other SRR officers and designated speakers, were “refused admission” by security guards into
17 the Commission chambers during the February 22, 2017 hearing. Third Amended
18 Counterclaim, pp. 21 – 22. SRR now admits, however, that Ms. Fisher and the others were
19 allowed to enter the Commission chambers and speak at the hearing. The following are the
20 undisputed material facts relevant to this request for summary judgment:
21
22 1. SRR Was Informed The Day Before That The Commission Chambers Would Be
Open To The Public Around 8:00 to 8:30 a.m.
23
24 The day before the February 22, 2017 hearing, SRR’s counsel Mr. Justin Jones met
25 with County security staff near the main entrance of the County building to go over
26 procedures and to determine where SRR could hold a press conference the next day. Exhibit
27 2, Barrera Depo., p. 27:9 – 28:9. The security supervisor at the time and former Metro police
28 officer, Mr. Roger Barrera, explained to Mr. Jones that the Commission chambers’ doors

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1 opened between 8:00 and 8:30 and that the public would be allowed to enter and sit down
2 prior to the start of the zoning meeting. Exhibit 2, Barrera Depo., p. 8:6 - 18. Mr. Barrera
3 also showed Mr. Jones where SRR could hold a press conference outside of the County
4 building. Exhibit 2, Barrera Depo., p. 27:9 – 28:9.
5 2. SRR Held A Press Conference Outside The County Building As The Chambers
Filled With People.
6
7 On February 22, 2017, instead of immediately entering the Commission chambers, SRR
8 held a press conference outside of the County building. Exhibit 1, Fisher Depo, p. 113:15 –
9 114:4.
10
11
12
13
14
15
16
17
18
19
20
21 Exhibit 1, Fisher Depo, exh. 28. SRR’s President, Ms. Heather Fisher, can be seen on the left
22 side of the photograph. Ms. Fisher estimated that the outside press conference lasted as late
23 as 10:00 am. Id. In the meantime, other people entered and filled the Commission chambers.
24 Exhibit 2, Barrera Depo. p. 8:19 – 23. Mr. Barrera testified that the chambers became full as
25 the zoning meeting started at 9:00 am – all of the seats were taken and people were standing
26 in the back. Exhibit 2, Barrera Depo. p. 8:19 – 23. Security staff was concerned about the
27 exits being blocked. Exhibit 2, Barrera Depo. p. 9:18 – 22. Thus, SRR supporters who
28 attended the press conference lost their initial opportunity to get a seat inside the Commission
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1 chambers. Exhibit 2, Barrera Depo. p. 13:21 – 14:3; 26:1 – 6; Exhibit 1, Fisher Depo, p.
2 148:9 – 11.
3 3. County Security Became Concerned About Safety And Maintaining Order.
4 The security staff became concerned because so many people had entered the
5 Commission chambers. Exhibit 2, Barrera Depo., p. 15:17 – 16:4. Security staff’s concerns
6 were not just fire code related. Mr. Barrera stated: “Well, not just the fire code. I mean
7 general safety. If something was to happen emergency-wise, it’s going to be hard to exit an
8 entire room that’s over capacity through the three doors that we have. In addition to that, you
9 know, it’s going to be difficult for – it was a hot topic. I imagine it would be difficult for the
10 commissioners to maintain order in the meeting, trying to get the meeting through with that
11 many people in there, being over capacity.” Exhibit 2, Barrera Depo., pp. 15:20 – 16-6.
12 Security was previously instructed by fire marshals that, when the chambers were filled
13 to capacity, security should have citizens form lines in the hallway outside of the chambers
14 and let people enter as other people left. Exhibit 2, Barrera Depo., p. 9:20 – 10:8.
15 Accordingly, when the chambers became full, security staff asked the people to form a line
16 in the hallway outside of the chambers and to wait their turn to enter as others left. Exhibit 2,
17 Barrera Depo., p. 8:19 – 9:10. A line was also formed inside chambers so that “as one person
18 would leave, the next person would come in because we were at capacity.” Exhibit 2, Barrera
19 Depo., p. 9:4 – 10. Mr. Barrera testified that “Nobody was refused entry” and that staff
20 explained to the people in line that “everybody” would “get a chance to speak.” Exhibit 2,
21 Barrera Depo., p. 16:12 - 19.
22 4. SRR Members Became Angry And Cursed At Security Staff Because They Were
Not Allowed To Immediately Enter The Chambers.
23
24 After SRR’s press conference ended, SRR members became angry when they could not
25 immediately enter the overfilled Commission chambers. Exhibit 1, Fisher Depo, p. 124:21 -
26 24. SRR’s president, Ms. Fisher, admitted that SRR members made a “big huge fuss.”
27 Exhibit 1, Fisher Depo, p. 118: 17 - 25. One SRR Board member, Dr. Sheila Billingsley was
28 particularly upset with County security staff. Security supervisor Barrera described what

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1 happened: “I remember distinctively [Dr. Sheila Billingsley] had gotten upset and yelled at
2 us, saying that if we let any of the Rhodes family in, she would scream and start throwing a
3 fit. She threw out a couple F-bombs. Being a police officer, I was pretty used to it. I asked
4 her to calm down, explained to her, we were trying to work with her and get everybody that’s
5 here for the meeting in the meeting, when – I mean we were at capacity. It was beyond our
6 control. There was nothing we could do.” Exhibit 2, Barrera Depo., p. 14:4 – 18. The
7 meeting was broadcast on the television monitors in the hallway outside of the chambers and
8 in the County Cafeteria so people could watch and hear the meeting as they waited to enter.
9 Exhibit 2, Barrera Depo., p. 9:1 - 3.
10 5. Ultimately, Everyone Was Allowed Inside The Chambers As Seats Became
Available.
11
12 SRR admitted during discovery that all of the people who wanted to enter chambers
13 were allowed to enter once seats became available. Exhibit 1, Fisher Depo, pp. 148:5 – 149:3.
14 The persons waiting to enter did not have to wait long to enter - “maybe twenty minutes” out
15 of a hearing that lasted over seven (7) hours. Exhibit 1, Fisher Depo., p. 121:20 – 21; Exhibit
16 3, County Clerk’s Log. SRR’s President, Ms. Fisher, explained that she had urged people to
17 come to the February 22, 2017 hearing and “it was the fullest they have ever seen that building
18 in the history of Clark County. There was no way they could let all of us in.” Exhibit 1,
19 Fisher Depo, pp. 122:8 – 122:13. Ms. Fisher further explained: “They were letting us in one
20 or two as one or two were leaving. So when somebody from another item left, they let one
21 or two of our people in.” Exhibit 1, Fisher Depo, pp. 120:5 – 120:17. Ultimately, all SRR
22 supporters were allowed in the Commission chambers. Exhibit 1, Fisher Depo, p. 118:14 –
23 16; 148:15 – 149:3.
24 ///
25 ///
26 ///
27 ///
28 ///

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1 The following is a photograph of Ms. Fisher speaking at the podium inside Commission
2 chambers during the February 22, 2017 hearing:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20 Exhibit 1, Fisher Depo, p. exh. 29.
21 C. The County Facilities Satisfy Open Meeting Law Requirements.
22 The Open Meeting Law Manual published by the Nevada Attorney General’s Office
23 states that facilities need to be “reasonably large enough to accommodate anticipated
24 attendance” but that a meeting still qualifies as a public meeting under the Open Meeting Law
25 if reasonable efforts nevertheless prove inadequate. Nevada Open Meeting Law Manual,
26 Twelfth addition, January 2016, § 7.02, p. 67, citing, Gutierrez v. City of Albuquerque, 631
27 P.2d 304 (N.M. 1981).
28 ///

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1 In Gutierrez v. City of Albuquerque, the petitioners contended that all persons “must
2 be in the room or in the presence of the Council members, regardless of the size of the crowd
3 and the limitations of the meeting hall." Id. at 400, 631 P.2d at 306. The court rejected the
4 petitioners' argument, noting that “[t]his narrow view would permit invalidation of any action
5 by a public body by the simple method of overflowing the chambers. Thus, the Council, to
6 be safe, would have to hire the football stadium or hold its meetings in a wide open space.
7 Even then, reductio ad absurdum, if a tree or other obstruction stood between an individual
8 and the Council, he could claim that he was not permitted to ‘attend’." Id. The Gutierrez
9 court concluded that the open meetings statute "mean[t] only that the governmental entity
10 must allow reasonable public access for those who wish to attend and listen to the
11 proceedings." 96 N.M. at 401, 631 P.2d at 307. Courts in other jurisdictions agree. See, Karol
12 v. Board of Educ. Trustees, 122 Ariz. 95, 97, n. 2, 593 P.2d 649, 651 n. 2 (1979)("The intent
13 of the legislature was to open the conduct of the business of government to the scrutiny of the
14 public and to ban decision-making in secret . . . . A meeting held in the spirit of this enunciated
15 policy is a valid meeting.").
16 Here, Clark County facilities satisfy Open Meeting Law requirements. The Clark
17 County commission chambers are large and were open to the public for the entire hearing.
18 Exhibit 2, Barrera Depo., p. 16:12 - 19. By SRR’s own account, however, the February 22,
19 2017 was an aberration with the number of people attending. According to Ms. Fisher: “It
20 was the fullest they have ever seen that building in the history of Clark County. There was
21 no way they could let all of us in.” Exhibit 1, Fisher Depo, pp. 122:11 – 122:13. Once the
22 chambers were full, persons wanting to speak at the hearing had to wait a short time to enter
23 the chambers until another person left. Exhibit 2, Barrera Depo., p. 8:19 – 9:10. In the
24 meantime, Clark County broadcast the hearing on the television monitors in the adjoining
25 hallway and in the County cafeteria so everyone would have the opportunity to observe the
26 hearing. Exhibit 2, Barrera Depo., p. 9:1 – 3; 16:15 – 17. The County Commission patiently
27 allowed everyone to speak who wanted to speak, over 120 persons, and in doing so, listened
28 to over seven (7) hours of public testimony. Exhibit 2, Barrera Depo., p. 16:12 – 19; Third

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1 Amended Counterclaim, p. 15, paragraphs 117 and 119; Exhibit 3, County Clerk’s Log.
2 Therefore, the February 22nd meeting satisfies the requirements of the Open Meeting Law.
3 D. Nothing In The OML Prohibits Having A Discussion That Is Contrary To
An Express Statement Of Staff On An Agenda.
4
5 SRR alleges that the agenda for the February 22, 2017 hearing stated the 2011 Concept
6 Plan expired and “any discussion to the contrary was per se excluded from the agenda.” Third
7 Amended Counterclaim, p. 20, paragraphs 157 – 158. But the statement in the agenda that the
8 2011 Concept Plan had expired was based on an error and was incorrect. The Director of the
9 Planning Department, Ms. Amundsen, testified that County staff originally erroneously
10 thought the 2011 Concept Plan expired due to a staff error that led them to believe that an
11 application had not been submitted and that fees had not been paid. Exhibit 4, Amundsen
12 Depo, p. 64:9 - 17; See also, Section V below. Staff later discovered they had erred when they
13 realized that fees had been paid and applications submitted. Exhibit 4, Amundsen Depo, p.
14 82:9 – 11; See also, Section V below.
15 On February 22, 2017, the District Attorney’s Office simply informed the County
16 Commission that staff’s statement on the agenda sheet that the 2011 Concept Plan had expired
17 was wrong and that the 2011 Concept Plan had not expired. Exhibit 5, Transcript of Feb. 22,
18 2017 hearing, p. CC 4087. Nothing in the Open Meeting Law prohibits a discussion that is
19 contrary to an express statement in an agenda. See NRS Chapter 241, et seq. There is no point
20 to holding a public hearing if incorrect factual statements cannot be discussed or corrected.
21 The very purpose of a public hearing is to ascertain facts and the truth.
22 In Red Rock Valley Ranch LLC v. Washoe County, county staff determined that a project
23 would not adversely affect the public, but the Washoe County Commission ultimately found
24 that the project would adversely affect the public. 127 Nev. 451, 455, 254 P.3d 641, 644
25 (2011). The Supreme Court upheld the Washoe County Commission’s decision – the
26 Supreme Court did not void the decision under the Open Meeting Law. Id., at 461, 254 P.3d
27 at 648.
28 ///

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1 Since the 2011 Concept Plan had not expired, the 2016 Concept Plan application
2 pending before the Commission was moot. At the hearing, SRR’s counsel, Mr. Jones agreed,
3 stating: “It is important to all the parties to know whether the 2011 expired. If the 2011
4 Concept Plan did not expire and is still in place, there will be no reason for the Board of
5 County Commissioners to consider the 2016 Concept Plan . . . Why are we considering a
6 2016 Concept Plan when both the County and the developer insist that the 2011 Concept
7 Plan is still in force?” Exhibit 5, Transcript of Feb. 22, 2017 hearing, p. CC 4095-4096.
8 Mootness is always relevant – it concerns the justiciability of a matter. New Energy Econ.
9 Inc. v. Shoobridge, 243 P.3d 746, 752 (2010), citing, Warth v. Seldin, 422 U.S. 490, 498
10 (1975); See also, Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010).
11 Thus, the issue of whether the 2016 Concept Plan was moot was properly before the County
12 Commission.
13 Notwithstanding, SRR cannot take the position at the February 22, 2017 hearing that it
14 was “important” to know whether the 2011 Concept Plan had expired or not and then
15 subsequently sue Clark County claiming Clark County was prohibited by the Open Meeting
16 Law from discussing the issue. Southern California Edison v. First Judicial Dist. Court, 127
17 Nev. 276, 285, 255 P.3d 231, 237 (2011); Marcuse v. Del Webb Communities, Inc., 123 Nev.
18 278, 287, 163 P.3d 462, 468-69 (2007)(Judicial estoppel applies when a party takes
19 inconsistent positions in judicial or quasi-judicial administrative proceedings in order to obtain
20 an unfair advantage). SRR’s position at the February 22, 2017 zoning hearing is clearly
21 inconsistent with the position it is now asserting before this Court.
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///

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1 E. Conclusion: Summary Judgment Should Be Granted Against SRR’s Open
Meeting Law Claims.
2
3 In addition to being barred by the limitations period in NRS 241.037(3)(b) and being
4 moot, all persons who wanted to enter chambers during the February 22, 2017 hearing were
5 allowed to. Some people may have had to wait a short time to enter because the chambers
6 were full, but it was not due to the County’s fault. SRR urged as many people as possible to
7 appear and then held a press conference outside the building while the chambers filled with
8 people. The agenda that day included an erroneous statement that the 2011 Concept Plan had
9 expired. The District Attorney’s Office properly pointed out that the statement in the agenda
10 was wrong and that 2011 Concept Plan had not expired.
11 The purpose of the Open Meeting Law is to ensure that proceedings are open to public
12 scrutiny, not to prohibit the correction of erroneous statements in an agenda. Summary
13 Judgment should be granted.
14 IV. NO EVIDENCE EXISTS THAT THE “PROCESSING” OF A SPECIFIC PLAN
/ PFNA WILL CAUSE HARM.
15
16 A. SRR Must Establish An Immediate Danger Of Injury And Demonstrate
Irreparable Harm.
17
18 A declaratory judgment is unavailable when the damage is merely apprehended or
19 feared. Doe v. Bryan, 102 Nev. 523, 525, 728 P.2d 443, 444 (1986). Litigated matters must
20 present an existing controversy, not merely the prospect of a future problem. Id. There must
21 be an “immediate danger of injury” such that a concrete dispute exists that requires the
22 “immediate and definitive determination of the parties' rights." Id, at 526, 728 P.2d at 444.
23 “Imaginative or speculative” risks are not sufficient to sustain a declaratory judgment claim.
24 Id. Similarly, a party seeking injunctive relief carries the burden of proving that there exists a
25 reasonable probability of irreparable harm for which compensatory damages would not
26 provide adequate remedy. S.O.C., Inc. v. Mirage Casino-Hotel, 117 Nev. 403, 408, 23 P.3d
27 243, 246 (2001). The following undisputed material facts support Clark County’s motion for
28 summary judgment:

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1 B. SRR’s President Admits “Processing” A Plan Does Not Cause Harm.
2 SRR alleges that the “processing” of Gypsum’s 2011 Specific Plan and PFNA
3 applications will cause SRR immediate and irreparable harm. When asked how the processing
4 of a plan could cause SRR harm, SRR’s President Ms. Heather Fisher responded by saying “If
5 you’re just talking about doing paperwork, we can do paperwork all you want. It’s not going
6 to affect me as long as you’re not setting in stone some future decision about zone change.
7 Exhibit 1, Fisher Depo., p. 80:18 - 80:25. Ms. Fisher further admitted that the alleged damage
8 would only occur “[i]f it’s developed the way – if the zoning is changed.” Exhibit 1, Fisher
9 Depo., 9:6 – 14.
10 C. No Evidence Of Immediate Irreparable Harm Was Produced By SRR During
Discovery.
11
12 During discovery, SRR produced no evidence of immediate danger of irreparable harm.
13 In response to Interrogatories, SRR admitted:
14 • “Save Red Rock does not contend that Gypsum may immediately begin
construction of 2.5 homes per acre on the Gypsum property;” and
15
• “Save Red Rock does not contend that Gypsum may immediately begin
16 construction of up to a maximum of 4,700 homes on the Gypsum property.”

17 Exhibit 6, p. 9, Interrogatory Nos. 11 and 12 (emphasis added). When asked to produce all
18 documents in support of SRR’s allegation of irreparable harm, SRR responded:
19 • “Save Red Rock has no documents responsive to this request at this time.”
20 Exhibit 7, p. 4, Request For Production No. 5 (emphasis added).
21 D. SRR Has Produced No Studies To Support Their Allegations Of Harm.
22 When asked if they have any studies to support their allegations of harm, SRR admits
23 they have none:
24 Q: Has Save Red Rock ever hired like a traffic engineer to do a traffic
analysis to determine the number of vehicle trips?
25
26 Ms. Fisher: No.
27
28 * * *

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1 Q: Have you ever done a study measuring noise, or how do you determine
that?
2
3 Ms. Fisher: No. It’s all just – it’s the experience.
4
5 Exhibit 1, Fisher Depo., pp. 83:22 – 25; 95:17 – 20. In SRR’s Interrogatory responses, SRR
6 claimed the approval of the 2011 Concept Plan “depressed home values in and around Red
7 Rock Canyon,” but SRR has no studies or information to back the claim up:
8 Q: What information do you have about depressed home values?
9 Ms. Fisher: Nothing.
10 Exhibit 1, Fisher Depo., p. 33:3 – 12. SRR’s claims of harm are purely speculative, with no
11 studies or analysis to substantiate its claims.
12 E. The Processing Of Gypsum’s Specific Plan/ PFNA Has Benefited SRR.
13 The processing of Gypsum’s Specific Plan and PFNA has led to a reduction in the
14 number of homes proposed by Gypsum. Based on its technical study and analysis and as a
15 result of its continued engagement with stakeholders, Gypsum now proposes 3,500 homes on
16 its 2,010 acres of land for a density of only 1.75 dwelling units per acre. Exhibit 8, Krater
17 depo. pp. 88:10 – 90:5. Gypsum’s latest proposal of 3,500 homes represents a substantial
18 reduction of homes from the 5,020 homes / 2.5 units per acre previously proposed by Gypsum
19 in its 2011 Concept Plan. Consequently, the “processing” of Gypsum’s Specific Plan/ PFNA
20 applications has benefitted SRR by resulting in a 1,500 home reduction in the number of
21 homes proposed for the Gypsum development.
22 F. No Evidence Exists That Proximity of Development Equates To Future Harm.
23 SRR’s declaratory and injunctive relief claims are based on the fear of future harm, that
24 “if approved,” the Gypsum development will adversely impact the RRCNCA. Exhibit 6, p. 8,
25 Interrogatory No. 8. The fear of future harm cannot sustain SRR’s declaratory and injunctive
26 relief claims. Nevertheless, SRR has produced no evidence in support of the idea that
27 proximity of development equates to future harm. What better way to determine whether
28

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1 future harm may occur than by examining developments that already exist next to the
2 RRCNCA:
3
4 1. Blue Diamond.
5 The town of Blue Diamond consists of private property within the boundaries of the
6 RRCNCA. Exhibit 1, Fisher Depo., exh. 21. SRR’s President, Ms. Fisher, lives with her
7 family in the town of Blue Diamond. Exhibit 1, Fisher Depo., p. 51: 9 - 11. During her
8 deposition, Ms. Fisher testified that no one in her family has ever done anything to harm
9 RRCNCA nor was she aware of any resident of Blue Diamond harming the RRCNCA in any
10 way. Exhibit 1, Fisher Depo., p.60:25 – 61:18. Nor is there evidence that the existing town
11 of Blue Diamond visually impacts the RRCNCA. Blue Diamond has streetlights and two-
12 story homes, but SRR’s President, Ms. Fisher, testified that Blue Diamond just looks like “a
13 chunk of trees” when viewed from the RRCNCA:
14 Q: A chunk of trees?
15 Ms. Fisher: Yes. When you are looking out over it, you see little – like
three little green spots on the horizon.
16
17 Exhibit 1, Fisher Depo., p. 51:24 – 52:17. When asked how Gypsum would visually impact
18 the RRCNCA when Blue Diamond only looks like a “little green spots on the horizon,” Ms.
19 Fisher offered the vague explanation that development of the Gypsum property would “detract
20 from the experience” of people visiting the RRCNCA:
21 Q: You said the visual impact will detract from the experience.
22 Ms. Fisher: From the experience, yes. Well, from how you feel. That’s no
safety. That’s just – that’s just detracting from the experience.
23
* * *
24
25 Q: So it would affect someone’s feelings, I guess, or something?

26 Ms. Fisher: Yes, experience. It’s a touchy feely thing.

27 ///

28 ///
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1 Exhibit 1, Fisher Depo., p. 90:18 – 91:16. Clearly, the requirement that SRR establish an
2 imminent, concrete injury, is not satisfied by testimony that the potential development of the
3 Gypsum property may affect some person’s feelings at some unknown, distant point in the
4 future.
5
6 2. Summerlin West.
7 Summerlin West also illustrates the point that proximity of development does not equate
8 to future harm. Summerlin West is an existing major project development located in the City
9 of Las Vegas west of County 215 and north of Charleston Avenue:
10
11
12 Summerlin
West
13
14
15
Gypsum
16
17
18
19 Exhibit 1, Fisher Depo., exh. 21. Summerlin West has the following features:
20 • Directly adjacent to the RRCNCA;
21 • Surrounded by the RRCNCA on three sides;
22 • 6,315 existing homes;
23 • Up to 30,000 homes approved to be built;
24 • Direct access onto State Route 159;
25 • Closest access to State Route 159 is just yards away from the entrance to
the RRCNCA; and
26
27 • Dark skies technique not employed.

28 ///
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1 Exhibit 1, Fisher Depo., pp. 97:10 – 19; 99:15 – 19; 100:11 – 13; 104:6 – 105:25; 112:5 - 15
2 and exh. 21; Exhibit 9, Declaration of Julie Cleaver, p. 1 and exh. 1.
3 SUMMERLIN WEST
4
5
6
7
8
County 215
9
10
11 Summerlin
West
12
13
14
15 RRCNCA
State Route 159
16 (Charleston)

17 Sky Vista Dr.


Entrance to
18 RRCNCA

19
20
21 Exhibit 9, Declaration of Julie Cleaver, exh. 1, map of Summerlin West.

22 SRR has produced no evidence that the thousands of persons currently residing in

23 Summerlin West have done anything to harm the RRCNCA. No evidence that Summerlin

24 West impacts the RRCNCA from a traffic standpoint. No evidence of light or noise pollution.

25 No evidence of any harm at all.

26 Nor has SRR ever objected or protested development in Summerlin West. Exhibit 1,

27 Fisher Depo., p. 101:10 – 12. SRR has never petitioned the City or NDOT about limiting

28 Summerlin West’s access to State Route 159 (Charleston Blvd.). Exhibit 1, Fisher Depo., pp.

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1 103:12 – 15; 105:4 - 7. SRR openly admits that Summerlin West does not impact the
2 RRCNCA in terms of noise or light pollution:
3
4 Q: So [Summerlin West] does create light pollution?
5 Ms. Fisher: Yes. But not into the canyon.
6 * * *
7 Q: So the light doesn’t travel into the conservation area; is that what you’re
saying? From Summerlin West, the noise doesn’t travel into the conservation
8 area?
9 Ms. Fisher: You want to come out with me some night and we’ll see how
nice and quiet and dark it is? It really is.
10
11
* * *
12
13 Q: Have you ever petitioned Summerlin or the city to require Summerlin
West to use the dark skies technique where they don’t have street lights or
14 anything in Summerlin West?
15 Ms. Fisher: That would be cool. We haven’t thought of it before.
16 Exhibit 1, Fisher Depo., pp. 110:2 – 111:1; 112:5 - 11. Finally, SRR is not concerned about
17 the traffic impact Summerlin West will have at full buildout of 30,000 homes. Exhibit 1,
18 Fisher Depo., p. 106:1 - 22. SRR’s president, Ms. Fisher, testified that if traffic counts get
19 too high, the BLM may simply place a fee booth at the entrances to the RRCNCA. Id.
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
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1 Figure 1: Comparison of Summerlin West to Gypsum:
2 Summerlin West Gypsum
3
4 Number of Existing Homes 6,315 0
5
6
Number of Proposed Homes 30,000 (approved) 3,500 (not approved)
7
8
Number of Acres 8,350 2,010
9
10
Direct Access Onto SR 159 Yes No
11
12
Dark Skies Technique No Yes
13
14
15 G. Conclusion: No Evidence Of Harm Exists.
16 In conclusion, SRR has produced no evidence that the processing of Gypsum’s Specific
17 Plan and PFNA applications will cause imminent, irreparable harm to SRR. Further, SRR
18 has produced no evidence that the proximity of development to the RRCNCA equates to
19 harm.
20 V. NO EVIDENCE EXISTS THAT THE 2011 CONCEPT PLAN EXPIRED.
21 SRR has produced no evidence that the 2011 Concept Plan expired. The following
22 undisputed material facts support Clark County’s motion for summary judgment:
23 A. The Code At The Time Did Not Provide An Expiration Date.
24 In September 2011, the Zoning Code in effect at the time provided that the next step in
25 the Major Projects Review Process after concept plan approval was the submittal of a specific
26 plan and public facilities needs assessment (PFNA). Exhibit 10, Clark County Code §
27 30.20.030, Table 30.20-1. In September of 2011, Chapter 30.20 of the Clark County Code
28 contained a section called “time limit” which stated: “Any Concept Plan shall expire within

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1 one (1) year if a Public Facilities Needs Assessment/Plan and Specific Plan has not been
2 submitted . . .” Exhibit 10, Clark County Code § 30.20.040, Table 30.20-2(h)(2011)(emphasis
3 added). The same section of the Clark County Code did not contain a provision stating when
4 a concept plan would expire in the event a Public Facilities Needs Assessment and Specific
5 Plan was submitted. Id.
6 B. Gypsum Commenced The Next Step In A Timely Manner.
7 The 2011 Concept Plan was approved by the Board of County Commissioners on
8 August 17, 2011. Exhibit 11. A condition was attached to the 2011 Concept Plan approval
9 that gave Gypsum “1 year to commence the next step in the Major Projects Review Process.”
10 Exhibit 11. Thus, Gypsum had until August 17, 2012 to commence the next step of the process
11 by submitting a Specific Plan and PFNA to the County. Gypsum submitted the Gypsum
12 Reclamation Specific Plan and Gypsum Reclamation Public Facilities Needs Assessment to
13 Clark County on September 29, 2011, thus satisfying the condition to commence the next step
14 of the Process within one year of the 2011 Concept Plan approval. Exhibits 12 - 13. Like the
15 Zoning Code, the Notice of Final Action (NOFA) for the 2011 Concept Plan approval did not
16 specify an expiration date once Gypsum satisfied the “1 year” condition of approval. Exhibit
17 11. Therefore, the 2011 Concept Plan never expired.
18 C. Fees Were Paid With Gypsum’s 2011 Specific Plan and PFNA Application
Submittals.
19
20 Gypsum completed application forms and paid the required fees when it submitted the
21 Specific Plan and PFNA on September 29, 2011. Exhibits 12 and 13. SRR has produced no
22 evidence to the contrary.
23 In the beginning of 2017, County staff erroneously believed that fees had not been paid
24 and application forms had not been submitted with Gypsum’s 2011 Specific Plan and PFNA
25 submittals. Exhibit 4, Amundsen Depo, p. 64:9 – 17; 71:24 – 72:2. However, in mid-February
26 2017, the Gypsum file was found containing the applications and receipts showing that
27 Gypsum had paid the application fees. Exhibit 4, Amundsen Depo, p. 73:11 – 18; 81:12 -
28 82:11. County employee Mr. Joel McCulloch explained how he found the file: “In the course

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1 of trying to find different applications, I was looking in old file cabinets and I opened a drawer
2 and the files were in that file drawer.” Exhibit 14, McCulloch Depo., p. 26:11 - 15; Exhibit 4,
3 Amundsen Depo, p. 82:9 - 11.
4 The errors that occurred in the case of Gypsum’s 2011 Specific Plan and PFNA
5 applications were twofold. First, the paper file was misplaced. Exhibit 14, McCulloch Depo.,
6 p. 26:11 - 15. Therefore, hard copies of the applications and fee payment receipts were not
7 initially available until they were accidentally found. Second, all of the assessor parcel
8 numbers for Gypsum’s 2011 Specific Plan and PFNA applications were not entered into the
9 Planning Department’s computer system. Exhibit 4, Amundsen Depo, pp. 61:24 - 25; 62:15 -
10 21; 63:3 - 22. A parcel would not be tied to an application number for a project if an assessor
11 parcel number was not entered into the tracking program in the computer system at the time
12 an application was submitted. Exhibit 4, Amundsen Depo, p. 60:1 – 61:16. If a County
13 employee clicked on a parcel that had not been entered into the computer system when the
14 application was received, no number would appear for that particular application. Exhibit 4,
15 Amundsen Depo, p. 21:10 - 22:16; 60:1 – 61:16; 61:24 - 25; 62:15 - 21; 63:3 - 22. Without
16 the application number, the employee would be unaware that the parcel was tied to an
17 application and therefore, would not be able to retrieve tracking information about the project
18 on the computer system or to locate the paper file containing documents for the project.
19 Exhibit 4, Amundsen Depo, p. 59:15 – 61:16; 68:12 - 15. Without the paper file and with no
20 information on the computer system being shown, County staff believed no fees had been paid
21 until February 2017 when the paper file was accidently found. Exhibit 4, Amundsen Depo, pp.
22 64:10 – 17; 68:12 - 15.
23 D. Conclusion: No Evidence Exists That The 2011 Concept Plan Expired.
24 Gypsum commenced the next step in the process by timely submitting its 2011 Specific
25 Plan and PFNA applications. Fees were paid at the time the applications were submitted.
26 Nothing in the Code at the time or in the NOFA provided an expiration date once Gypsum
27 commenced the next step. SRR has no evidence to the contrary. Summary judgment should
28 be granted.

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1 CONCLUSION
2 For the reasons stated above, Clark County respectfully requests this Court to grant its
3 motion for summary judgment.
4 Dated this ___ day of June, 2018.
5 STEVEN B. WOLFSON
DISTRICT ATTORNEY
6
7 By: /s/Robert T. Warhola
ROBERT T. WARHOLA
8 Deputy District Attorney
State Bar No. 004410
9 500 South Grand Central Pkwy.
Las Vegas, Nevada 89155-2215
10 Attorney for Counter-Defendant
Clark County
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1 CERTIFICATE OF ELECTRONIC SERVICE
2 I hereby certify that I am an employee of the Office of the Clark County District
3 Attorney and that on this ___day of June, 2018, I served a true and correct copy of the
4 foregoing CLARK COUNTY’S MOTION FOR SUMMARY JUDGMENT (United States
5 District Court Pacer System or the Eighth Judicial District Court Wiznet), by e-mailing the
6 same to the following recipients. Service of the foregoing document by e-mail is in place of
7 service via the United States Postal Service.
8
Justin C. Jones. Esq.
9 Nicole Lovelock, Esq.
JONES LOVELOCK
10 400 S. 4th St., Ste. 500
Las Vegas, NV 89101
11 Attorneys for Counter-Plaintiff
Save Red Rock
12 jjones@joneslovelock.com
nlovelock@joneslovelock.com
13
Bradley S. Schrager, Esq.
14 WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP
3556 E. Russell Road, 2nd Floor
15 Las Vegas, NV 89120
Attorney for Counter-Plaintiff
16 Save Red Rock
bschrager@wrslawyers.com
17
Mark E. Ferrario, Esq.
18 GREENBERG TRAURIG, LLP
3773 Howard Hughes Parkway, #400
19 Las Vegas, NV 89169
Attorney for Gypsum Resources LLC
20 ferrariom@gtlaw.com

21
22 /s/Christine Wirt
An Employee of the Clark County District
23 Attorney’s Office – Civil Division

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