FILED

Electronically
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
10

11 IN THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA IN AND FOR THE
12 COUNTY OF WASHOE
13 ROGER PRIMM, individually and
ROGER B. PRIMM FAMILY TRUST,
14
Plaintiffs,
15 Case No. CV17-00238
vs. Dept. No. 6
16
NEVADA DIVISION OF FORESTRY;
17 UNIVERSITY OF NEVADA RENO;
ABC CORPORATIONS I-X, inclusive;
18 BLACK & WHITE COMPANIES I-X,
inclusive; and JOHN DOES I-X,
19
Defendants.
20

21 NEVADA DIVISION OF FORESTRYS PARTIAL MOTION TO DISMISS ON

PLAINTIFFS CLAIMS FOR INVERSE CONDEMNATION, TRESPASS,
22 NUISANCE, AND STRICT LIABILITY
23 The Nevada Division of Forestry moves under NRCP 12(b)(5) to dismiss Plaintiffs
24 causes of action for inverse condemnation, nuisance, trespass, and strict liability.
25 I.
26 INTRODUCTION
27 The Little Valley Fire was a tragedy, but not a taking of private property for a
28 public use that would support a claim for inverse condemnation under the Nevada

30 Page 1 of 19
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

9 private property for a public use.

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

13 legislatively granted immunity, absent gross negligence.

14 II.

15 PLAINTIFFS ALLEGATIONS

16 A. Plaintiffs causes of action

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

20 accepted as true only to decide this Motion to Dismiss.

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

13 home, timber, landscaping, and outbuildings. Id.

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

22 A. Just compensation is warranted where the effects of the government

action grant a benefit to the government, rather than merely cause an
23 injury that is compensable in tort
24 The governments power of eminent domain is a natural attribute of sovereignty.

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

4 government is acting as sovereign.

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

11 at 1355. Second, whether the invasion appropriated a benefit to the government, or

12 preempted the owners right to enjoy his property, as opposed to merely inflicting damage

13 to the property. Id. at 1356.

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

18 law, that requires this Court to dismiss this Complaint.

19 B. Plaintiffs inverse condemnation claim fails because no taking occurred

20 1. Whether a taking occurred is a question of law

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

30 Page 4 of 19
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).

4 2. Plaintiffs inverse condemnation theory is inconsistent with the

meaning of the word taking
5

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

8 a direct government appropriation or physical invasion of private property; or (2) by

9 enacting a regulation that is so onerous that its effect is tantamount to a direct

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.

17 Second, Plaintiffs cannotand do notargue that there was a direct government

18 appropriation of their property. An appropriation occurs when the government

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

24 by Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005)).

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

27 appropriation of Plaintiffs property.

28 ...

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1 Third, there was no physical invasion. A physical invasion occurs where the

2 government grants to itself possession of plaintiffs property or reserves part of

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.

11 3. Plaintiffs conflation of damage with taking is contrary to

Article 1, Sec. 8(6) of the Nevada Constitutions text
12

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)).

16 The text of Nevadas eminent domain constitutional provision is found at Article 1,

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

25 Sloat v. Turner, the Court wrote:

26 As noted, the statement relied on by the court presupposes a

constitutional provision allowing just compensation for damage
27 as well as taking. The Constitution of the State of Nevada
provides for compensation based solely on a taking by the state
28 of private property, not for damage thereto.

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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

5 provide a remedy in the form of an action for damages. Szekeeres by Szekeres v.

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

8 compensation for an injury, which is defined as any invasion of a legally protected

9 interest of another. Sadler v. PacifiCare of Nev., 130 Nev. Adv. Op. 98, ____, 340 P.3d

10 1264, 1269 (2014) (quoting Restatement (Second) of Torts, 7(1) (1965)).

11 Again, a tort is what Plaintiffs are alleging in their Complaint when they assert a

12 taking because of Defendants reckless, willful and/or negligent conduct in failing to

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

15 Justice Holmes as being entirely inconsistent with takings jurisprudence:

16 If the case were one against a private individual, his liability, if

any, would be in tort. There is no remedy in such case against
17 the United States.
18 Sanguinetti v. United States, 264 U.S. 146, 148 (1924). Dismissal is warranted here too.

19 4. Plaintiffs inverse condemnation theory is further at odds with

Nevada eminent domain theory, which requires that the
20 governments invasion of Plaintiffs property interest be by design
21 Plaintiffs will undoubtedly analogize this case to those cases where the Nevada

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

24 Courts definition of a taking. To be actionable as a taking, a governmental interference

25 with property rights must be permanent, continuous, or inevitably recurring rather

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,

28 784 P.2d 459, 459-60, 465 (Utah 1989)).

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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

3 requirement. The Nevada Supreme Court found inverse condemnation to be a viable

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,

14 takings, or condemnation claim).

15 5. The drafters of Nevadas Constitution modeled Article 1, 8(6) on the

Fifth Amendment to the U.S. Constitution, which would bar
16 Plaintiffs inverse condemnation claim
17 Even if a court were to view the text of Article 1, 8(6) as ambiguous, which it is

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

20 historical understanding of text and public policy to determine an ambiguous

21 constitutional text). The drafters of Nevadas Constitution based Article 1, 8(6)s

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

27 under federal law.

28 ...

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1 Under federal law, the United States Supreme Court has always distinguished

2 between intentional government conduct resulting in a taking and unintentional injuries

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

13 there was no evidence of the governments intent to flood the land)).

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

18 Plaintiffs inverse condemnation claim.

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,

22 natural, or probable result of an authorized activity and not the incidental or

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

27 treated as torts, not takings. Id. at 325-26.

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.

14 6. Persuasive authority supports finding no taking as a matter of law

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

24 inverse condemnation through either a taking or damage, the Tennessee Constitution is

25 limited to claims for property taken and not property damaged. To determine that a

26 governmental defendant may negligently take private property would be to read a

27 damaging clause into the Tennessee Constitution. We decline to do so. Edwards v.

28 Hallsdale-Powell Util. Dist. Knox Cty., Tenn., 115 S.W.3d 461, 466 (Tenn. 2003).

30 Page 10 of 19
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)

5 (interpreting Article II, section 22 of the Arkansas Constitution to require an intentional

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

10 a purposeful or intentional act is an element of an inverse condemnation claim); Lizza v.

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

16 give rise to a claim under Article I, section 17 of the Texas Constitution).

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:

20 Other jurisdictions have a more expansive test for government

takings, because the takings clauses of their constitutional
21 provisions expressly require compensation for government
actions that damage private property as well as those that
22 take private property . . . Oregon, however, has abrogated its
sovereign immunity for torts and has no damage provision in
23 its takings clause. Both considerations are additional reasons to
adhere to requiring intent as an element of a takings claim in
24 this context.
25 Dunn v. City of Milwaukie, 328 P.3d 1261, 1270 (Or. 2014) (citing Moeller et ux. v.

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

28 extend compensation to a broader range of cases)); see generally Patterson v. Horsefly

30 Page 11 of 19
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

3 from necessity of taking private property for public purpose).

4 Here, Nevadas Constitution allows for compensation in the event of a taking of

5 and not a damage toPlaintiffs property. Plaintiffs eminent domain theory fails.

6 7. Courts have dismissed similar inverse condemnation theories based

on damage resulting from an escaped controlled burns
7

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

18 was based in tort and was not a taking.

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

23 the incidental or consequential injury inflicted by the action. An accidental or negligent

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

9 defendant to take plaintiffs property or an intention to do an act the natural consequence

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

20 the Colorado State Forest Service intended. Id. at 328.

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

30 Page 13 of 19
1 Dayton Mining Co. v. Seawell, 11 Nev. 394, 408 (1876); see also Milchem Inc. v. District

2 Court, 84 Nev. 541, 548, 445 P.2d 148, 152 (1968).

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:

9 We conclude that damage to private property that is reasonably

necessary to log state lands is for a public use, requiring
10 compensation under article 1, section 16.
11 Dickgeiser, 105 P.3d at 540-41. Thus, the meaning of for public use, as the Washington

12 Supreme Court explained in a later en banc opinion, means that the damage to the

13 owners property was a necessary incident to the governmental project. Fitzpatrick v.

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

16 not reasonably necessary to conducting the controlled burn. Consequential damage

17 resulting from lawful government activity is not a taking for public use. See Gibson v.

18 United States, 166 U.S. 269, 276 (1897).

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

21 American Family Mutual Insurance,

22 Damaging private property was not part of the prescribed

burns plan and, as the district court pointed out, was not
23 required to mitigate the danger of wildfire. In fact, damage to
private property was the opposite of what was intended. The
24 controlled burn was initiated to protect land and other
resources from destruction by fire, and the public benefit of that
25 burn was the removal of dangerous fuels in a controlled
manner. The ensuing wildfire was the precise scenario the
26 controlled burn was ignited to avert.
27 Id. at 328.
28 ...

30 Page 14 of 19
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

6 damage to real or personal property could be the basis of an inverse condemnation

7 theory, which it cannot, Plaintiffs inverse condemnation claim still fails because the

8 Defendant did not cause the damage for a public use.

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
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(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

21 In the comment on Clause (a) of 158 at 278 it is stated in part:

22 i. Causing entry of a thing. The actor, without himself entering

the land, may invade anothers interest in its exclusive
23 possession by throwing, propelling, or placing a thing, either on
or beneath the surface of the land or in the air space above it.
24 Thus, in the absence of the possessors consent or other
privilege to do so, it is an actionable trespass to throw rubbish
25 on anothers land . . . In order that there may be a trespass
under the rule stated in this Section, it is not necessary that
26 the foreign matter should be thrown directly and immediately
upon the others land. It is enough that an act is done with
27 knowledge that it will to a substantial certainty result in the
entry of the foreign matter.
28 ...

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1 Addressing the definition, scope and meaning of intent, section 8A of the Restatement

2 (Second) of Torts says:

3 The word intent is used . . . to denote that the actor desires to

cause consequences of his act, or that he believes that the
4 consequences are substantially certain to result from it.
and we find in comment b at 15:
5
Intent is not, however, limited to consequences which are
6 desired. If the actor knows that the consequences are certain, or
substantially certain, to result from his act, and still goes
7 ahead, he is treated by the law as if he had in fact desired to
produce the result.
8

9 Likewise, an actionable nuisance is an intentional interference with the use and

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

14 F. Supp. 2d 1164, 1184 n. 18 (E.D. Wash. 2006).

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.

25 Dismissal is warranted because Plaintiffs cannot meet an essential element of their

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

7 plain language of this immunity statute.

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.

18 DATED: April 3, 2017.

19 ADAM PAUL LAXALT

Attorney General
20
By: /s/ Steve Shevorski
21 Steve Shevorski (Bar. No. 8256)
Head of Complex Litigation
22 Ketan D. Bhirud (Bar No. 10515)
General Counsel
23 Theresa M. Haar (Bar. No. 12158)
Deputy Attorney General
24
Attorneys for the Nevada Division of Forestry
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 AFFIRMATION
1 (Pursuant to NRS 239B.030)
2 The undersigned does hereby affirm that the foregoing document does not contain

3 the social security number of any person.

4 Dated: April 3, 2017.

5 ADAM PAUL LAXALT

Attorney General
6
By: /s/ Steve Shevorski
7 Steve Shevorski (Bar. No. 8256)
Head of Complex Litigation
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1 CERTIFICATE OF SERVICE

2 I certify that I am an employee of the State of Nevada, Office of the Attorney

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

5 filing system will be served electronically as follows:

6 WILLIAM C. JEANNEY, ESQ. GARY A. CARDINAL

Bradley, Drendel & Jeanney BRYAN L. WRIGHT
7 P.O. Box 1987 General Counsel for UNR
Reno, NV 89505 1664 N. Virginia St. MS 0550
8 Attorneys for Plaintiffs Reno Nevada 89557-0550
Attorneys for Defendant
9 University of Nevada, Reno
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12 /s/ Barbara Fell

Barbara Fell, an employee of
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