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CV17-00238
2017-04-03 03:44:18 PM
1 2315 Jacqueline Bryant
ADAM PAUL LAXALT Clerk of the Court
2 Transaction # 6032118 : tbritton
Attorney General
Steve Shevorski (Bar. No. 8256)
3 Head of Complex Litigation
Ketan D. Bhirud (Bar No. 10515)
4 General Counsel
Theresa M. Haar (Bar. No. 12158)
5 Deputy Attorney General
State of Nevada
6 Office of the Attorney General
555 E. Washington Avenue, Suite 3900
7 Las Vegas, NV 89101
(702) 486-3783 (phone)
8 (702) 486-3773 (fax)
sshevorski@ag.nv.gov
9 thaar@ag.nv.gov
Attorneys for the Nevada Division of Forestry
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1 Constitution. Takings are classified by three types: A direct appropriation of private
2 property for public use; a physical invasion where the government permanently reserves
3 part of the landowners property for public use; and a regulatory taking. Plaintiffs
4 allegations, of negligently failing to control a prescribed burn, do not meet any of these
5 classifications. Plaintiffs mistakenly assert that takings and tort law are synonymous.
6 They are not. The rule in Nevadabased on the text of Article 1, Section 8(6), the cases
7 interpreting it, and persuasive authority from other federal and states casesis that
8 consequential damage that results from lawful government activity is not a taking of
10 This Court should also dismiss Plaintiffs claims for trespass and nuisance because
11 the element of intent cannot be met. Finally, the common law concept of strict liability for
12 abnormally dangerous activity cannot apply where the Nevada Division of Forestry is
14 II.
15 PLAINTIFFS ALLEGATIONS
17 Plaintiffs filed their Complaint in the wake of the Little Valley Fire. Plaintiffs pled
18 causes of action for inverse condemnation, nuisance, trespass, strict liability, and
19 negligence. To support those claims, Plaintiffs allege the following facts, which are
21 B. Plaintiffs do not allege that their property was within the burn perimeter
described in the burn plan
22
23 Plaintiffs own real property outside the Whittell Forest and Wildlife Areaa
24 teaching facility of the Nevada System of Higher Education. Compl. at 1-2. The
25 University of Nevada, Reno and the Nevada Division of Forestry conducted a controlled
26 burn in the Whittell Forest and Wildlife Area from October 4, 2016, to October 7, 2016, in
27 order to protect the nearby land (including Plaintiffs property). Id. at 9-14. A
28 controlled burn is a technique used in forest management to reduce fuel buildup and
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1 decrease the likelihood of serious, hotter fires. Because fire is a natural part of forest
2 ecology, controlled burns are necessary every so often to reduce the risk of dangerous fires
3 that would naturally occur. In short, the goal of a controlled burn is to create a fire that is
4 controlled to prevent a larger fire and protect the nearby land. Plaintiffs allege the
5 controlled burn was to occur in the Whittell Forest and Wildlife Area in order to benefit
6 properties such as theirs that lie outside that area. Id. at 13.
7 C. Plaintiffs allege their property was destroyed after embers from the
controlled burn escaped the burn perimeter
8
9 Plaintiffs allege that wind gusts in excess of 80 miles per hour were forecasted to
10 occur the week of the controlled burn. Id. at 14. Seven days after the controlled burn
11 was stopped, 80 mile per hour winds arose, carried embers across the controlled burn
12 perimeter, and caused a wildfire. Id. at 16. Wildfire then entered and burned Plaintiffs
14 III.
15 LEGAL STANDARDS
16 This Court should dismiss a case where a pure issue of law requires dismissal.
17 State v. Eighth Judicial Dist. Court ex rel. County of Clark, 118 Nev. 140, 147, 42 P.3d
18 238, 238 (2002) (recognizing that mandamus may lie where a rule or statute requires
19 dismissal of matter).
20 IV.
21 LEGAL DISCUSSION
25 Boom Co. v. Patterson, 98 U.S. 403, 406 (1879). The Takings Clause of the 5th
26 Amendment is a limit on that power. The Takings Clause is designed to bar Government
27 from forcing some people alone to bear public burdens which, in all fairness and justice,
28 should be borne by the public as a whole. Armstrong v. United States, 364 U.S. 40, 49
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1 (1960). The courts, in attempting to define when a taking has occurred as a result of
2 this sovereign power, have been careful to distinguish between improvident or negligent
3 actions of the government inflicting damage and a taking of private property where the
5 Inverse condemnation law is tied to, and parallels, tort law. 9 Patrick J. Rohan &
6 Melvin A. Reskin, Nichols on Eminent Domain 34.03[1] (3d ed. 1980 & Supp. 2002)
7 (cited in Ridge Line, Inc. v. U.S., 346 F.3d 1346, 1356 (Fed. Cir. 2003)). Courts have
8 formed a two-part test to determine whether the governments action may be a tort, as
9 opposed to a taking. First, whether the government intended the invasion of private
10 property or the invasion was the direct, natural, or probable result. Ridge Line, 346 F.3d
12 preempted the owners right to enjoy his property, as opposed to merely inflicting damage
14 Here, Plaintiffs allege that Defendants reckless, willful and/or negligent conduct
15 in failing to control the prescribed burn effected a taking of their property. Compl. at
16 33. Plaintiffs theory of eminent domain ignores the distinction between tort law and
17 takings law. It is Plaintiffs conflation of these two legal theories, tort law and takings
21 There are five elements that must be met in order for a plaintiff to state a claim for
22 inverse condemnation. Fritz v. Washoe Cty., 132 Nev. Adv. Op. 57, 376 P.3d 794, 796
23 (2016). A plaintiff must prove (1) a taking (2) of real or personal interest in private
24 property (3) for public use (4) without just compensation being paid (5) that is
25 proximately caused by a governmental entity (6) that has not instituted formal
26 proceedings. Fritz, 132 Nev. Adv. Op. ____, 376 P.3d at 796. If any element is missing,
27 the claim fails. Sproul Homes of Nev. v. State ex. rel. Dept of Highways, 96 Nev. 441, 611
28 P.2d 620 (1980) (affirming dismissal where plaintiff failed to allege facts supporting the
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1 taking element). Whether a taking occurred presents a pure issue of law. City of Las
2 Vegas v. Cliff Shadows Professional Plaza, LLC, 129 Nev. Adv. Op. 2, 293 P.3d 850
3 (2013).
6 Contrary to Plaintiffs theory, the state government does not take property if it
7 damages it. There are two ways in which the State of Nevada may take property: (1) by
10 appropriation or ouster. Saticoy Bay LLC Series 350 Durango 104 v. Wells Fargo Home
11 Mortgage, a Division of Wells Fargo Bank, N.A., 388 P.3d 970, 974 (Nev. 2017) (quoting
12 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005)). Fire damage to a home outside
13 the burn perimeter of a controlled burn does not meet any of these definitions.
14 First, Plaintiffs property was not subject to a government regulation at all, let
15 alone one so onerous that they were constructively ousted from their property. There was
16 no regulatory taking.
19 substantially interferes with an owners right of access to his or her property. ASAP
20 Storage, Inc. v. City of Sparks, 123 Nev. 639, 648, 173 P.3d 734, 740 (2007). A taking
21 under those circumstances occurs where, for instance, the government occupies and takes
22 over operation of a coal mine to prevent a strike as though the government held full title
23 to that property and business. See U.S. v. Pewee Coal Co., 341 U.S. 114, 115 (1951) (cited
25 Here, the government never took title to Plaintiffs property. The government, in
26 fact, did not set a foot on Plaintiffs property. There was no taking by government
28 ...
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1 Third, there was no physical invasion. A physical invasion occurs where the
3 landowners property for the public. McCarran Intl Airport v. Sisolak, 122 Nev. 645, 137
4 P.3d 1110 (2006) (per se taking occurred where county permanently reserved airspace
5 over land for overflights); see also United States v. Causby, 383 U.S. 256, 265 (1946).
6 Plaintiffs taking theory does not fit within any existing definition of a taking.
7 Plaintiffs theory conflates tort law and eminent domain. Not every government damage
8 or destruction of property is a taking. Omnia Commercial Co. v. United States, 261 U.S.
9 502, 510 (1923). Consequential injury to property from lawful government activity is not a
10 taking. Id.
13 A court should first look to the text of the constitutional provision to resolve a
14 constitutional question. Strickland v. Waymire, 126 Nev. 230, 234, 235 P.3d 605, 608
15 (2010) (citing Secretary of State v. Burk, 124 Nev. 579, 590, 188 P.3d 1112, 120 (2008)).
17 Section 8(6):
18 Private property shall not be taken for public use without just
compensation having been first made, or secured, except in
19 cases of war, riot, fire, or great public peril, in which case
compensation shall be afterward made.
20
21 Nev. Const., Art. 1, 8(6). The text of Article 1, 8(6) does not contain the word damage.
22 Plaintiffs eminent domain theory mistakenly equates two words that have
23 different meanings: taken and damaged. Compl. at 29. Plaintiffs eminent domain
24 theory contains a legal error because Nevadas Supreme Court has already rejected it. In
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1 93 Nev. 263, 268, 563 P.2d 86, 89 (1977). Sloats holding marks the unmistakably clear
2 separation of tort law and the law of eminent domain that Plaintiffs ignore in their
3 Complaint.
4 A tort is a civil wrong, other than breach of contract, for which the court will
6 Robinson, 102 Nev. 93, 95, 715 P.2d 1076, 1077 (1986) (quoting Prosser and Keeton on the
7 Law of Torts p. 2, West Publishing Co., (5th ed. 1984)). The law of tort seeks to provide
9 interest of another. Sadler v. PacifiCare of Nev., 130 Nev. Adv. Op. 98, ____, 340 P.3d
11 Again, a tort is what Plaintiffs are alleging in their Complaint when they assert a
13 control the prescribed burn. Compl. at 33. Plaintiffs allegations are no different from
14 any other negligence case. Plaintiffs eminent domain theory was rejected years ago by
22 Supreme Court, and others, have found that a taking occurred due to flooding, even
23 temporary flooding. The analogy is not apt because it ignores the Nevada Supreme
26 than a temporary, one-time occurrence. See ASAP Storage, Inc. v. City of Sparks, 123
27 Nev. 639, 649, 173 P.3d 734, 741 (2007) (quoting Rocky Mountain Thrift v. Salt Lake City,
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1 The case of Fritz v. Washoe County is instructive, even though the case is primarily
2 concerned with how much government involvement is necessary to meet the public use
4 theory in that case because the government approved subdivision maps and purposefully
5 directed the flow of water downstream to the plaintiffs property. Fritz, 376 P.3d at 795.
6 The flooding in that case would inevitably recur by the governments design. Id. at 798.
7 Here, Plaintiffs do not allege that Defendant designed the burn plan in such a
8 fashion that fire would necessarily spread to their land. To the contrary, Plaintiffs must
9 concede that the entire purpose of the burn plan was to prevent fire from occurring on
10 Plaintiffs land. Such an act, if done by a private individual would beat mosta tort.
11 The same is true where the defendant is the government. Sanguinetti v. United States,
12 264 U.S. at 148; see also Van Meter v. City of Wells, 958 F. Supp. 2d 1178, 1181 (D. Nev.
13 2013) (Nor was there any intent to invade Plaintiffs property, negating a trespass,
18 not, looking to history and public policy demonstrates that Plaintiffs eminent domain
19 theory lacks merit. See Strickland, 126 Nev. at 234, 235 P.3d at 608 (courts may look to
22 language on the takings clause of the Fifth Amendment to the United States
23 Constitution. See Debates & Proceedings of the Nevada State Constitutional Convention
24 of 1863, at 65-68 (Andrew J. Marsh Off. Rep., 1866); see also See Debates & Proceedings
25 of the Nevada State Constitutional Convention of 1864, at 60-63 (Andrew J. Marsh Off.
26 Rep., 1866). And it is beyond peradventure that Plaintiffs theory of a taking would fail
28 ...
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1 Under federal law, the United States Supreme Court has always distinguished
3 to property that are classified as torts. The case of Arkansas Game and Fish Commission
4 v. U.S., 133 S. Ct. 511 (2012) and the authority cited thereon are particularly instructive.
5 In Arkansas Game and Fish Commission, the issue was whether temporary
6 flooding can ever give rise to a takings claim. Id. at 518. The court reasoned, based on its
7 existing precedent, that where the government intentionally induced flooding, even if for
8 a limited duration, and then intentionally directed the flood waters to a plaintiffs
9 property, that could give rise to a taking. Id. at 519 (citing Pumpelly v. Green Bay Co., 80.
10 U.S. 166 (1872) and United States v. Cress, 243 U.S. 316 (1917)). The key to why a taking
11 may have occurred in Arkansas Game and Fish Commission is that the flooding was by
12 government design. Id. at 520 (citing Sanguinetti, 264 U.S. at 148 (no taking because
14 In declaring that the degree to which the invasion is intended or is the foreseeable
15 result of authorized government action are relevant inquiries, the court cited to Ridge
16 Line, Inc. v. United States, 346 F.3d at 135556; In re Chicago, Milwaukee, St. Paul &
17 Pacific Railroad Co., 799 F.2d 317, 32526 (7th Cir. 1986). These two cases doom
19 In Ridge Line, the Federal Circuit distinguished takings cases from tort cases and
20 stated that a property loss compensable as a taking only results when the government
21 intends to invade a protected property interest or the asserted invasion is the direct,
23 consequential injury inflicted by the action. Id. at 1355. The Seventh Circuit, in In re
24 Chicago, Milwaukee, St. Paul & Pacific Railroad, stated that despite the contention that
25 all torts by the government are takings . . . the [U.S.] Supreme Court has distinguished
26 the two and that [a]ccidental, unintended injuries inflicted by governmental actors are
28 ...
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1 Arkansas Game and Fish Commissions foreseeability limitation on takings law
2 rests on a solid foundation, which was nicely explained in Moden v. United States, 404
3 F.3d 1335, 1342 (Fed. Cir. 2005). Foreseeability in takings law does not mean that the
4 governments act in question was the likely cause of the injury, but rather that the injury,
5 fire damage to Plaintiffs property, was the likely result of conducting a controlled burn.
6 Id. at 343
7 Here, Plaintiffs do not allege that Defendant intended the controlled burn to reach
8 their land and consume their property. Plaintiffs do not claim that the damage allegedly
9 suffered was the direct, natural result of the act of conducting a controlled burn.
10 Plaintiffs do not allege, for example, that the burn plan included fire on their property.
11 Again, Plaintiffs are alleging negligence in how the controlled burn was suppressed.
12 Compl. at 33. Plaintiffs theory is one of tort and not one supported by the law of
13 eminent domain.
15 Accidental damage to property is not a taking. Lucien v. Johnson, 61 F.3d 573, 576
16 (7th Cir. 1995). This legal conclusion is true even in states whose constitutions just
17 compensation clause includes the word damage. States such as Texas, Nebraska, and
18 New Mexico still require the plaintiff in an inverse condemnation action to prove that the
19 government intended to take their property. City of Dallas v. Jennings, 142 S.W.3d 310
20 (Tex. 2004); see also Henderson v. City of Columbus, 827 N.W.2d 486 (Neb. 2013); Electro
21 Jet Tool Mfg. v. Albuquerque, 845 P.2d 770 (N.M. 1992). Other examples are easy to find.
22 Plaintiffs inverse condemnation theory would not pass muster in Tennessee. The
23 Supreme Court of Tennessee clarified that while a state could allow for a finding of
25 limited to claims for property taken and not property damaged. To determine that a
28 Hallsdale-Powell Util. Dist. Knox Cty., Tenn., 115 S.W.3d 461, 466 (Tenn. 2003).
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1 Edwards cites heavily to five other states, each requiring that, for a taking to exist,
2 there must be an intentional act by the government before there can be a taking, because
3 those states constitutions also limit compensation to a taking and not also for damage.
4 See Natl ByProducts, Inc. v. City of Little Rock, 916 S.W.2d 745, 747 (Ark. 1996)
6 act by the governmental defendant); Sullivant v. City of Oklahoma City, 940 P.2d 220,
7 225 (Okla. 1997) (requiring that the governmental act show an intent to exercise the
8 power of eminent domain or to take the property for a public use in order to constitute a
9 taking); Vokoun v. City of Lake Oswego, 56 P.3d 396, 40001, 402 (Or. 2002) (holding that
11 City of Uniontown, 28 A.2d 916, 918 (Pa. 1942) (stating that a claim for inverse
12 condemnation can be made only if the plaintiff shows that the damages suffered were
13 the direct, immediate, necessary, and unavoidable consequences of the making of the
14 improvement); City of Abilene v. Smithwick, 721 S.W.2d 949, 951 (Tex. Ct. App. 1986)
15 (stating that the governmental defendant must intentionally perform an act in order to
17 Similarly, courts in Oregon have also heavily relied on the distinction between
18 states that only require just compensation for a taking and those whose constitutions
19 allow for just compensation for a damage. The Oregon Supreme Court recently wrote:
26 Multnomah County, 345 P.2d 813 (Or. 1959) (contrasting Oregons Constitutions takings
27 clause with those of states that include damage provisions, which has led those states to
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1 Irrigation Dist., 69 P.2d 282 (Or. 1937) (emphasizing that unnecessary damage, as often
2 occurs from negligence, is at odds with exercise of eminent domain power, which arises
5 and not a damage toPlaintiffs property. Plaintiffs eminent domain theory fails.
8 As Nevadas Constitution allows for just compensation where there is a taking, and
9 not merely damage, the Court here must then consider whether the actions alleged by
10 Plaintiffs adequately state a claim of intentional conduct on the part of Nevada Division
11 of Forestry in conducting the controlled burn in Little Valley. Plaintiffs have not and
12 cannot.
13 The case of Thune v. United States is directly on point with the current action. 41
14 Fed. Cl. 49 (1998). There, the plaintiffs hunting camp was destroyed when a controlled
15 burn executed by the US Forest Service escaped after high winds. The plaintiff filed suit
16 alleging inverse condemnation, based on his claim that the destruction of his camp
17 constituted a taking under the Fifth Amendment. The Court determined that this claim
19 The court explained that to state a taking claim, plaintiff must allege that there
20 was an intent on the part of the defendant to take plaintiffs property or an intention to
21 do an act the natural consequence of which was to take [his] property. The property loss
22 must have been the direct, natural, or probable result of an authorized activity and not
24 impairment of the value of property is not a taking, but, at most, a tort. Id. at 52
25 (quoting Columbia Basin Orchard v. United States, 132 F. Supp. 707, 709 (Ct. Cl. 1955)).
26 In Thune v. United States, the plaintiff acknowledged that his hunting camp was
27 not within the intended burn area. However, the plaintiff also alleged that because the
28 US Forest Service failed to maintain and control the Dry Cottonwood fire and because
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1 the US Forest Service was negligent in failing to do so, that his loss constituted a
2 taking. Id. The Court of Federal Claims disagreed. It reasoned that, because the
3 plaintiffs camp was outside the intended burn area, it could not be said that the Forest
4 Service intended to take the camp. Ultimately, it was determined that whether it was
5 unexpected wind changes or government negligence, the result is the samenamely that
6 the claim sounds in tort and is not a taking. Thune, 41 Fed. Cl. at 53.
7 The court in Thune relied on the holding in Columbia Basin Orchard, which held
8 that a taking is limited to situations where there was an intent on the part of the
10 of which was to take its property. Columbia Basin Orchard, 132 F. Supp. at 709.
11 Similarly, the Colorado Court of Appeals has held that damage resulting from an
12 escaped controlled burn cannot be the basis for an inverse condemnation claim. Am.
13 Family Mutual Ins. Co. v. Am. Natl. Prop. and Cas., 370 P.3d 319 (Colo. Ct. App. 2015).
14 In American Family Mutual Insurance, the Colorado State Forest Service initiated a
15 controlled burn, but four days later high winds carried embers to land outside the
16 controlled burns perimeter. Id. at 324. Thereafter, a wildfire erupted resulting in loss of
17 life and property damage. Id. The Colorado Court of Appeals dismissed the plaintiffs
18 inverse condemnation claim as there was no taking, because the damage to the plaintiffs
19 property was not part of the controlled burn plan; but was, in fact, the opposite of what
21 Here, as in Thune and American Family Mutual Insurance, Plaintiffs do not allege
22 that Defendant intentionally damaged Plaintiffs property as part of the controlled burn
23 plan. Quite the contrary, Defendants purpose was to prevent harm to Plaintiffs property.
24 C. Plaintiffs inverse condemnation theory fails under the for public use
element of inverse condemnation
25
26 An essential element of any inverse condemnation claim is that the plaintiff proves
27 that the state actor damaged private property for public use. Fritz, 132 Nev. Adv. Op. at
28 ______ 376 P.3d at 796. Public use means for public utility, benefit, and advantage
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1 Dayton Mining Co. v. Seawell, 11 Nev. 394, 408 (1876); see also Milchem Inc. v. District
3 Importantly, the Fritz court cited the Washington Supreme Courts decision,
4 Dickgieser v. State, 105 P.3d 26, 29 (Wash. 2005) (en banc), to establish the elements of
5 inverse condemnation. Fritz, 132 Nev. Adv. Op. at ______, 376 P.3d at 796. The Court in
6 Dickgieser also defined the circumstance when government damage to property can be
7 for public use in order to support a claim for inverse condemnation. The court wrote as
8 follows:
12 Supreme Court explained in a later en banc opinion, means that the damage to the
14 Okanogan Cty., 283 P.3d 1129, 1137 (Wash. 2010) (en banc). The escape of the controlled
15 burn from the burn perimeter was not a necessary incident to the controlled burn. It was
17 resulting from lawful government activity is not a taking for public use. See Gibson v.
19 The Colorado Court of Appeals also found the for public use element lacking in
20 nearly identical circumstances to this case. As the Colorado Court of Appeal wrote in
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1 Here, as in American Family Mutual Insurance, Plaintiffs theory of inverse
2 condemnation would render the phrase for public use completely nugatory. Plaintiffs
3 seek to destroy the distinction between tort law and inverse condemnation. Any impact
4 on Plaintiffs real property or personal property was entirely accidental. Any impact on
5 Plaintiffs property was not a necessary incident to the controlled burn. Therefore, even if
7 theory, which it cannot, Plaintiffs inverse condemnation claim still fails because the
9 D. Plaintiffs causes of action for trespass, nuisance, and strict liability also
deserve dismissal
10
11 The torts of trespass and nuisance are closely related. A trespass is an invasion by
12 the defendant of a property right held by the plaintiff. Lied v. Clark County, 94 Nev. 275,
13 278-79, 579 P.2d 171, 173-74 (1978). The Restatement (Second) of Torts 158 (1965)
14 states:
One is subject to liability to another for trespass, irrespective of
15 whether he thereby causes harm to any legally protected
interest of the other, if he intentionally
16
(a) enters land in the possession of the other, or causes a thing
17 or a third person to do so, or
18 (b) remains on the land, or
19 (c) fails to remove from the land a thing which he is under a
duty to remove.
20
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1 Addressing the definition, scope and meaning of intent, section 8A of the Restatement
10 enjoyment of land that is both substantial and unreasonable. Jezowski v. City of Reno, 71
11 Nev. 233, 286 P.2d 257 (1955). The principle distinction between trespass and nuisance is
12 that nuisance concerns an interference with the use and enjoyment of land through an
13 indirect, intangible invasion caused by the defendant. See City of Moses Lake v. U.S., 430
15 Plaintiffs trespass and nuisance theories fail because Plaintiffs did not, and
16 cannot, plead facts to support the element of intent. In Nevada, intent means the
17 conscious desire to cause the consequences of ones acts and a belief that the
18 consequences are substantially certain to occur. Mallin v. Farmers Inc. Exchange, 108
19 Nev. 788, 791, 839 P.2d 105, 107 (1992). Plaintiffs do not allege, and cannot allege, that it
20 was Defendants conscious desire to damage Plaintiffs property. The Defendants desire
21 in the burn plan, as Plaintiffs concede, was the opposite. Compl. at 12.
22 Plaintiffs nuisance theory fails for the additional reason that they failed to plead
23 facts showing an intangible invasion of their property rights. Fire is not intangible.
24 Plaintiffs do not allege their injuries are due to smoke or other intangible intrusions.
26 claims.
27 Plaintiffs strict liability theory should also be dismissed. NRS 41.031(1) provides
28 that the State waives its sovereign immunity and consents to have its liability
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1 determined as any other defendant except as otherwise provided in . . . any statute
2 which expressly provides for governmental immunity. NRS 527.126 is one of those
3 governmental immunity statutes, which holds that the state enjoys immunity from
4 liability, absent gross negligence. In sum, Nevadas Legislature has granted Defendant
5 immunity from civil liability arising out of a controlled burn, absent gross negligence. See
6 NRS 527.126(4). Plaintiffs common law theory based on strict liability is barred by the
8 V.
9 CONCLUSION
10 This Court should grant Defendants partial motion to dismiss. Plaintiffs, at most,
11 allege an accidental injury to their property. Accidents are not takings for public
12 purposes. Plaintiffs theory of eminent domain law is foreign to Nevada law, federal law,
13 and the law of the several states that have considered this issue. Dismissal is warranted
14 on this claim, as well as Plaintiffs trespass, nuisance, and strict liability theories, due to
15 Plaintiffs failure to plead facts supporting the essential elements of these claims. The
16 only remaining claim that should be permitted to proceed at this time is Plaintiffs claim
17 of negligence.
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AFFIRMATION
1 (Pursuant to NRS 239B.030)
2 The undersigned does hereby affirm that the foregoing document does not contain
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1 CERTIFICATE OF SERVICE
3 General, and that on April 3, 2017, I electronically filed the foregoing document via this
4 Courts electronic filing system. Parties that are registered with this Courts electronic
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