Gypsum Resources Motion For Summary Judgement

1 MSJ
MARK E. FERRARIO, ESQ.

2 Nevada Bar No. 1625
TAMI D. COWDEN, ESQ.
3
Nevada Bar No. 8994
4 WHITNEY L. WELCH-KIRMSE, ESQ.
Nevada Bar No. 12129
5 GREENBERG TRAURIG, LLP
3773 Howard Hughes Parkway,
6 Suite 400 North
7 Las Vegas, Nevada 89169
Telephone: (702) 792-3773
8 Facsimile: (702) 792-9002
Email: ferrariom@gtlaw.com
9 cowdent@gtlaw.com
welchkirmsew@gtlaw.com
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11 Counsel for Gypsum Resources, LLC

Suite 400 North, 3773 Howard Hughes Parkway
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Las Vegas, Nevada 89169
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Greenberg Traurig, LLP
DISTRICT COURT
(702) 792-9002 (fax)
(702) 792-3773
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CLARK COUNTY, NEVADA
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CLARK COUNTY, a political subdivision of the Case No.: A-16-747882-C
16 State of Nevada, Dept. No.: XXX
17 Plaintiff,
vs. GYPSUM RESOURCES, LLC’S MOTION
18 FOR SUMMARY JUDGMENT ON SAVE
SAVE RED ROCK; GYPSUM RESOURCES, RED ROCK’S CLAIM FOR
19 LLC; DOES I-X; DOE PARTNERSHIPS I-X;
INJUNCTIVE RELIEF
ROE CORPORATIONS I-X,
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Defendants.
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_______________________________________
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SAVE RED ROCK, a Nevada non-profit
23 corporation,
24 Counterclaimant,
vs.
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CLARK COUNTY, a political subdivision of
26 the State of Nevada,
27 Counterdefendant.
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SAVE RED ROCK, a Nevada non-profit
1 corporation,
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Cross-Claimant,
3
vs.
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GYPSUM RESOURCES, LLC,
5
6 Cross-Defendant.
8 Defendant/Cross-Defendant Gypsum Resources, LLC (“Gypsum”), by and through its
9 attorneys of record, the law firm of Greenberg Traurig, LLP, hereby submits this Motion for
10 Summary Judgment (“Motion”).
11 This Motion is based upon the attached Memorandum of Points and Authorities, the paper,
12 pleadings, and records contained in the Court’s file, the argument of counsel to be presented at the
hearing on the Motion, and any other argument or evidence considered by the Court.
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(702) 792-3773
14 DATED this 15th day of June, 2018.
16 /s/ Tami D. Cowden_________

MARK E. FERRARIO, ESQ.
17
Nevada Bar No. 1625
18 TAMI D. COWDEN, ESQ.
Nevada Bar No. 8994
20 3773 Howard Hughes Parkway, Suite 400 N
Las Vegas, NV 89169
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LV 421159490v1
1 NOTICE OF MOTION
2 TO: ALL PARTIES AND ATTORNEYS OF RECORD
3 YOU AND EACH OF YOU will please take notice that the undersigned will bring the
4 foregoing Gypsum Resources, LLC’s Motion for Summary Judgment on Save Red Rock’s Claim
5 for Injunctive Relief on for hearing before the above-entitled Court in Department XXX located at
6 200 Lewis Avenue, Las Vegas, Nevada 89155, on the ______ day of __________________, 2018,
7 at ___________ a.m./p.m., or as soon thereafter as counsel may be heard.
11 MARK E. FERRARIO, ESQ.
Nevada Bar No. 1625

Nevada Bar No. 8994

(702) 792-9002 (fax)

(702) 792-3773

14
3773 Howard Hughes Parkway, Suite 400 N
15 Las Vegas, NV 89169
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This Court should grant judgment in favor of Gypsum on Save Red Rock’s (“SRR”) cross
4 claim because SRR is legally incapable of bringing its claim against Gypsum. Under Nevada law,
5 statutory authorization is required before a party can assert claims of behalf of others. Here, SRR
6 does not purport to assert its own claims, but instead, contends that it represents other persons. Yet,
7 there is no statute that grants SRR the authority to present the claims of these other persons, and
8 therefore, SRR’s claims must fail.
9 Furthermore, even if SRR had the legal capacity to bring the claims of third parties, it cannot
10 identify any of the purported individuals it claims to represent. Indeed, based on the testimony of
11 SRR’s 30(b)(6) representative Heather Fisher, the entity is simply a group that solicits donations for
12 the future construction of a bike path in Red Rock Canyon.1 This non-profit entity has apparently
13 falsely represented in this litigation that it is the voice of a concerted group of homeowners in and
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14 near Red Rock Canyon, but the reality is that SRR does not have members, and has no means of
15 tracking its supporters. SRR’s inability to identify the individuals it purports to represent is critical,
16 because without such identification, it is not possible to show that SRR represents anyone who has
17 suffered an injury that is specific and distinct from that suffered by any other member of the public
18 as the result of Gypsum’s purported illegal use of Highway 159.
19 Additionally, even if SRR had standing, its claim fails because there is no merit to the
20 allegation that Gypsum is currently precluded from using Highway 159. Save Red Rock’s claim is
21 based on the absurd notion that a condition imposed on future development plans has immediate
22 application to the property’s current use. Specifically, SRR relies solely on a condition placed on
23 the approval of the 2011 Concept Plan, which condition expressly states that it must be met before a
24 building permit will be issued for the future development. Since no building permit for future
25 proposed development has been issued, the condition could not possibly be deemed to be currently
26 applicable to the property. Furthermore, if the condition were currently in effect, Clark County
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1
The proposed bike path amenity will likely be much appreciated by the bicycle tour company she and her
28 husband own and operate.
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1 would have impermissibly precluded Gypsum from accessing its property at a time when Gypsum
2 is engaged in reclamation work required by a mining plan of operations approved by the BLM and
3 other Clark County entities.
4 In short, SRR’s sole cause of action against Gypsum is based on an oversold representative
5 status and is based on a violation of a future condition that is impossible to violate at the present
6 time. Accordingly, the motion for summary judgment should be granted.
7 II. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
8 Pursuant to NRCP 56, Gypsum sets forth the follow as undisputed material statements of
9 fact:
10 Gypsum’s Property and use Thereof
11 1. In 2002, Gypsum acquired approximately 2,464 acres of land on and around Blue
12 Diamond Hill in Red Rock Canyon, formerly the James Hardie gypsum mine and surrounding
13 land (the “Gypsum Property”). Exhibit 1, Third Amended Crossclaim (“TAC”) ¶10.
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14 2. Gypsum Resources is engaged in mining operations at the Gypsum property under a

15 plan of operations approved by the BLM on July 13, 2011. Exhibit 2, Deposition of Ron Krater,
16 80:15-81:17. Exhibit 3, Email Chain, p. 2.
17 3. Vehicles access Gypsum’s property via Highway 159 and a road that traverses BLM
18 land. Exhibit 2 at 81:17-23, 83:7-10.
19 4. Gypsum complies with all legal requirements related to its use of public highways in
20 the state of Nevada. Id. at 83:24 – 84:20.
21 5. Gypsum does not have construction vehicles accessing Highway 159 because no
22 construction is occurring on its property. Id. at 23:25-24:13; 84:21-85:2.
23 6. In an email dated February 24, 2012 from Robert B. Ross, Field Manager of the Las
24 Vegas Office of the BLM, to multiple persons, including Max Heeman, who identified himself as
25 “Vice Chair” of Save Red Rock; Justin Jones, counsel for Red Rock; Heather Fisher, President of
26 Save Red Rock, as well as various employees of Clark County, Mr. Ross advised that the reason
27 the BLM had terminated the James Hardie Gypsum right of way over BLM land was because
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1 Gypsum already had rights to cross BLM land to access its property for two others reasons,
2 including
3 1) “by way of the road that was claimed by the county as RS-2477 and identified as
4 831T,” and
5 2) because Gypsum was operating under a plan of operation, N71999, approved by
6 the BLM on July 13, 2001. Pursuant to 43 CFR 3809.420, “an Operator is entitled to
7 access his operations consistent with provisions of the mining law.”
8 Exhibit 3, p. 3
9 7. In 2011, Gypsum submitted an application to Clark County, through its major
10 projects process, for approval of a Gypsum Reclamation Concept Plan (the “2011 Concept Plan”)
11 to “reclaim, restore, and develop the historic gypsum mining land commonly known as ‘Blue
12 Diamond Hill’.” Exhibit 1, TAC at ¶27.

13 8. Submission of a concept plan is the first step in the major projects process under
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14 Chapter 30 of the Clark County Code for approval of projects larger than 700 acres. Subsequent to
15 approval of a concept plan, a developer must then submit a specific plan and public facilities needs
16 assessment (“PFNA”), and, if approved, enter into a development agreement with Clark County. Id.
17 at ¶28
18 9. On August 17, 2011, the Clark County Commission a p p r o v e d Gypsum’s
19 application for approval of the 2011 Concept Plan, subject to certain conditions required to be
20 fulfilled prior to issuance of a building permit, Id. at ¶¶ 35 and 37; Exhibit 4, Notice of Final
21 Action; Exhibit 5, Deposition of Clark County PMK Nancy A. Amundsen, 36:15-24.
22 10. As relevant here, under the heading of “Major Projects – Planning,” the following
23 condition was listed: “No access onto Highway 159.” Exhibit 4.
24 11. Nothing in the Notice of Final Action indicates that any existing use of the Gypsum
25 Property was compromised or limited. Id.
26 12. The Notice of Final Action states that “You will be required to comply with all
27 conditions prior to the issuance of a building permit or a business license whichever occurs first.”
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1 Id.
2 13. The condition of “no access to Highway 159” did not create an immediate
3 prohibition of Gypsum’s use of Highway 159. Exhibit 5, 117:25-120:11; Exhibit 6, Deposition
4 of Joel McCulloch 9:13-16; 55:16-56:3.
5 14. Instead, said condition indicated that the application for a building permit would
6 require (absent a waiver of the condition) that the proposed development have “no access onto
7 Highway 159. Exhibit 5, Amundsen, 117:25-120:11.
8 15. “Each and every condition attached to the 2011 Concept Plan only applies to the
9 future major project proposed by Gypsum.” Ex. 7, Clark County’s Responses to Gypsum’s First
10 Set of Interrogatories, Response to Interrogatory No. 3.
11 16. None of the conditions apply or relate to Gypsum’s present ability to use or access its
12 property. Id.
13 17. Under the Clark County Code, there is no deadline to request a waiver of a condition,
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14 save for the date of any expiration of the underlying application. Ex. 6, McCulloch, 57:18-58:2;
15 Clark County Code 30.16.180, Table 30.16-15.
16
Origin and Nature of SRR
17
18. SRR identified itself in the Third Amended Complaint as follows:
18
Counterclaimant SAVE RED ROCK is a grassroots Nevada non-profit corporation
19 committed to protecting the rural, recreational, and scenic nature of Red Rock
20 Canyon and surrounding areas. Save Red Rock represents those who live near
and/or recreate in and around Red Rock Canyon, including those who frequent the
21 Red Rock Scenic Byway (“Highway 159”) and thus are directly impacted by current
and proposed development in Red Rock Canyon.
22
23 Exhibit 1, TAC ¶ 1
24 19. Gypsum noticed the deposition of the Person Most Knowledgeable of SRR, with, as
25 relevant here, the following topics to be included in the deposition:
26 a. The name and address of each person SRR contends will be damaged by
27 development of the Gypsum Property;
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1 b. Information regarding the nature and amount of all damages SRR believes will be
2 incurred for each individual named in topic “a” above;
3 c. Monetary and non-monetary donations SRR received from 2010 through the present,
4 including the amount and nature of the donations;
5 d. All information related to SRR’s allegation that Gypsum cannot use Highway 159 to
6 access its Property at this time;
7 e. SRR’s Responses to Gypsum’s First Set of Interrogatories; and
8 f. All information related to SRR’s claim for Injunctive relief against Gypsum for
9 alleged violation of the 2011 Concept Plan.
10 Exhibit 8, Notice of Deposition of Person Most Knowledgeable of Defendant SRR.
11 20. The 30(b)(6) representative produced by SRR was its President, Heather Fisher,
12 who has been its president since the office was created more than 7 years ago. Exhibit 9, 30(b)(6)
13 Deposition of Save Red Rock (Heather Fisher), 14:4-20.

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14 21. Ms. Fisher owns a bike shop, Las Vegas Cyclery, located in the City of Las Vegas,
15 in Summerlin. Id. at 19:11-16.
16 22. She, and some others, founded SRR after a bicyclist who, in either 2005 or 2007,
17 died following a collision with either a car or a construction vehicle driven by an individual from
18 Pahrump on Highway 159; the vehicle that struck the bicyclist was not from Gypsum’s mine. Id. at
19 11:11-12:123; 138:20-139:4.
20 23. Ms. Fisher also owns a tour company called “Escape Adventures.” Id. at 65:8-13.
21 24. Escape Adventures provides several different bike tours into the Red Rock
22 Conservation area, often providing multiple tours on a given day. Id. at 67:21-72:14.
23 25. Donations made to SRR are collected to satisfy a matching donation requirement for
24 a grant application that has personal significance for SRR’s founder, with the intended goal being a
25 bike path along the loop in Red Rock Canyon. Other than for the purpose of meeting the matching
26 fund requirement to build a bike path, SRR could only suggest that the funds had been used for a
27 website and for some billboards before a February Clark County Commission meeting and was
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1 otherwise unable to explain how its funds obtained from donations are used. Id.at 14:20-16:7;
2 73:22-74; 74:13; 142:10-145:16. Specifically, SRR testified as follows:
3 Q: So every donation you’ve ever had is being saved for this matching grant?
4 A: Yes. It’s a five percent match. So we have to come up with $350,000.
5 Id. at 144:19-22.
6 26. SRR could not state how much it had received in donations in 2017. Id. at 16:20-
7 17:18.
8 27. SRR refused to answer when asked if it had any large donors. Id. at 18:13-18.
9 Persons whom SRR Purports to Represent.
10 28. SRR does not have members, and does not maintain a membership list. Id. at 28:15-
11 17; 29:9-12.
12 29. SRR is unable to state how many persons have donated to its causes, or have
13 otherwise supported its causes. Id. at 29:15-25.

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14 30. SRR was unable to identify any specific individuals who would be damaged as a
15 result of development of Gypsum’s property, and instead contended that “everybody” would be
16 damaged. Id. at 9:15-19.
17 31. When asked what it meant when it said that ‘Save Red Rock represents the interests
18 of those who live near Red Rock Canyon, SRR’s 30(b)(6) representative replied:
19 A. Well, I think that’s an oversight. I should have said that Save Red Rock
20 represents everybody. That’s what I would change it to say.
21 Q. What do you mean by ‘everybody”?
22 A. Because Red Rock Canyon is actually more of an escape for people that live
23 in the city than it is for people who live out there.
24 Q. So you mean everybody, you mean everybody, just –
25 A. Everybody. Everybody needs a place to escape to that’s safe, unless they
26 don’t want to, but I feel like it’s a good thing.
27 Q. So when you say “everybody,” you really don’t mean only those who live
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1 near Red Rock Canyon, right?
2 A. No.
3 Q. What do you mean no?
4 A. I mean everybody can be affected by it.
5 Q. So it would be more accurate to say that Save Red Rock represents the
6 interests of everybody?
7 A. Everybody.
8 Id. at 18:13-18
9 SRR’s Claim for Injunctive Relief against Gypsum.
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32. SRR’s Cross Claim against Gypsum seeks preliminary and injunctive relief
11
“enjoining and restraining Gypsum accessing Highway 159 for reclamation work.” Ex. 1, TAC,
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Prayer for Relief.
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33. SRR alleged that Gypsum was engaged in mining despite having lost its “rights-of
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way” over BLM land. Id. at ¶55
15
34. SRR made that allegation despite the fact that its President and Treasurer had been
16
expressly informed by the BLM that 1) Gypsum is engaged in a BLM approved plan of mining
17
operations, and 2) is entitled to use roads across the BLM for two separate reasons. SOF 16-18.
18
35. When asked via interrogatory to state all material facts in support if its contention
19
that it was being harmed by Gypsum’s use of Highway 159, SRR replied as follows:
20
Save Red Rock represents the interests of those who live near and/or recreate in and
21 around Red Rock Canyon, including bicyclists, hikers, runners, motorcyclists, and
motorists who frequent the Red Rock Scenic Byway (Highway 159). Since 2014,
22 Gypsum has employed large construction vehicles to transport gypsum and other
material from its property several times a day. These vehicles drive on Highway 159
23 between the entrance road to Gypsum’s property and SR 160. Similar vehicles have
caused injury or death on Highway 159 and elsewhere. Gypsum’s construction
24 vehicles endanger the lives of recreations, bicyclists, hikers, runners, motorcyclists,
and motorists that Save Red Rock represents every day driving too close to users of
25 Highway 159 and dropping material on Highway 159.
26 Ex. 10, SRR’s Responses to Gypsum’s First Set of Interrogatories, Response to Int. No. 1.
27 36. SRR testified that the basis for the contention that “similar vehicles endanger the
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1 lives of various persons” is based on the death of Ms. Fisher’s friend in 2005 or 2007. Ex. 9, SRR
2 30(b)(6) at 139:10-16.
3 37. When asked via interrogatory to state all material facts that support its contention
4 that it is being harmed by Clark County’s approval of the 2011 Concept Plan, SRR replied as
5 follows:
6 Approval of the 2011 Concept Plan has depressed home values in and around Red
Rock Canyon, particularly in Blue Diamond, from the anticipated values had the
7 2011 Concept Plan not been approved.
8 Ex. 10, Response to Int. No. 2.
9 38. SRR admitted that it would not personally be affected if the development occurred,
10 but instead, it would be Red Rock Canyon that would be affected. SRR testified that “It is not us
11 personally.” Ex. 9, SRR 30(b)(6) at 85:12-19.
12 39. When asked for the information SRR has about depressed home values, its 30(b)(6)
13 witness responded, “Nothing.” Id. at 33:2-17.

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14 40. When asked via interrogatory the basis of its contention it would be harmed by
15 Gypsum’s development, SRR contended that the development will result in an additional 14,000 car
16 trips, create a visual impact on Red Rock Canyon, both of which SRR contended would “detract
17 from the experience of the individuals that Save Red Rocks represents.” SRR also contended that
18 the development would create or exacerbate watershed and drainage issues and adversely affect
19 sensitive, threatened and/or endangered species of flora and fauna. SRR did not state any facts
20 showing that such harm was specific to it. Ex. 10, Response to Int. No. 3.
21 41. SRR could not explain the basis for the assertion that the development would result
22 in 14,000 additional car trips (or where such car trips would occur); SRR has not hired a traffic
23 engineer to determine the number of vehicle trips. Ex. 9, 83:2-25.
24 42. SRR did not identify any specific persons it claims to represent or whether those
25 persons would be harmed by either Gypsum’s use of Highway 159 or its development. Exhibit 10,
26 Responses to Int. Nos. 2 and 3.
27 43. When asked via interrogatory the basis of its contention that Gypsum is precluded
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1 from using Highway 159, SRR cited the August 25, 2011 Notice of Final Action which
2 memorialized the County’s approval of the Concept Plan, and noted that such approval contained
3 the condition of no access onto Highway 159. SRR also cited Gypsum’s withdrawn request for a
4 waiver of said condition. Ex. 10, Response to Int. No. 4.
5 44. When asked regarding its contention that Gypsum is precluded from currently using
6 Highway 159, SRR’s Rule 30(b)(6) representative testified as follows:
7 By Ms. Welch-Kirmse:
8 Q. Have you ever seen [Motion Exhibit 4] before?
9 A. So was this then right after the 2011 plan hearing?
10 Q. I ‘m just asking if you’ve seen the document before.
11 A. Possible. Possibly.
12 Q. So if you look at some of the conditions, this may be where you developed
the understanding about the Highway 159 conditions, so I want to go through this
13
with you. Now, if you look at the second paragraph, where it says, “The above
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referenced application,” do you see that?

14
A. Yes.
15
Q. Would you agree with me that the last sentence of that paragraph says, “You
16 will be required to comply with all conditions prior to the issuance of a building
permit”?
17
A. Yes.
18
Q. And then under the conditions, down there, it says, “No access on to
19 Highway 159.” Do you see that?
20 A. Yes.
21 ***
22 Q. Let me ask this a different way. You don’t see on here that it says that these
conditions are effective immediately, correct? That is not what it says?
23
A. It says prior to, so that’s everything before, isn’t it?
24
Q. Prior to the issuance of a building permit?
25
A. Yeah, so everything before. Everything prior.
26
***
27 Q. And so these restrictions, when it says, “You’re required to comply with all
conditions prior to the issuance of a building permit, “would mean it has to be
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complied with in order to get a building permit. Is that fair?
1
A Everything before.
2
***
3
Q. So you have a – your interpretation of this condition is that it is effective
4 immediately on Gypsum.
5 A. Yes.
6 Q. That is based on your understanding of something that the county said in
2011?
7
A. It says right here, “Approved subject to these conditions.”
8
Q. So you’re reading prior to the issuance of a building permit to mean
9 immediate restriction. Is that your position?
10 A. I mean from when its approved until they get their building permit.
Everything prior.
11
12 Ex. 9, SRR 30(b)(6) at 34:20-37:23 (emphasis added). Thus, SRR’s claim for injunctive relief
against Gypsum is premised upon its 30(b)(6) representative’s apparent understanding that the 2011
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14 Concept Plan approval precludes Gypsum from having access onto Highway 159 until it has
15 obtained a building permit.
16 45. SRR acknowledges that Gypsum’s use of the property for mining is legal. Ex. 9., at
17 21:22-23:7; 89:8-11.
18 46. SRR contends that according to the approval of the 2011 Concept Plan, Gypsum is
19 not permitted to access its own property at this time, unless it builds and uses a road to it from
20 Highway 160. Ex. 9, at 41:11-22, 42:21-43.
21 47. SRR was unable to produce any documents in support of a contention that it has been
22 harmed by SRR’s use of Highway 159. Ex. 11, SRR’s Reponses to Gypsum’s First Request for
23 Production of Documents, Response to Request No. 1.
24 48. SRR’s website contains a page that states that if Gypsum’s development proceeds,
25 numerous laws would be violated. When asked for the information supporting such allegations,
26 SRR’s 30(b)(6) witness admitted she “pretty much probably just made it up.” Ex. 9, at 30:10-
27 31:10.
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1 III. STATEMENT OF FACTS RELEVANT TO THIS MOTION
2 Gypsum’s use of its Property
3 Gypsum owns approximately 2400 acres of land near Blue Diamond Hill in Clark County.
4 Separate Statement of Undisputed Material Facts (“SOF”) 1. Such property has long been used
5 for mining purposes, and Gypsum is currently operating under a plan of operations that was
6 approved by the BLM. SOF 2. To access its property, Gypsum uses a road that crosses BLM land,
7 and exits at Highway 159. SOF 3. The BLM has acknowledged that Gypsum has the right to cross
8 its land for its mining activities and related operations. SOF 2.
9 No construction vehicles travel on Highway 159 on behalf of Gypsum, because there are no
10 construction activities taking place on its property. SOF 4. Gypsum complies with all applicable
11 highway laws in its use of Highway 159. Gypsum complies with all legal requirements related to
12 its use of public highways in the state of Nevada. Id. at 83:24 – 84:20.
13 In 2011, Gypsum submitted a Concept Plan for approval by Clark County for development
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14 of a housing community on its property. SOF 7. As a major project, such a plan would have to go
15 through multiple levels of planning and approval; the “Concept Plan” approval was merely the first
16 step in the process. SOF 8. Clark County approved the Concept Plan, subject to certain conditions
17 which would have to be met prior to the issuance of a building permit. SOF 9. As relevant here,
18 one such condition was that there would be “[n]o access onto Highway 159.” SOF 10. None of the
19 conditions included in the approval of the Concept Plan created immediate restrictions on Gypsum’s
20 use of the property, but instead, referred to conditions that would be applicable to the intended
21 housing community. SOF 13-16.
22 Cross Claimant Save Red Rock is an entity that purports to represent other individuals, but
23 failed to identify any specific person it represents. SOF 18, 25-27. SRR has no members, and does
24 not have any means of tracking its supporters. Id. It has variously claimed in this litigation to
25 represent persons who live near and recreate in Red Rock Canyon, and to represent “everybody.”
26 SOF 18, 31.
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1 However, the picture of SRR that has emerged from this litigation is that it is an organization whose
2 primary purpose appears to be devoted to soliciting donations to fund the construction of a future
3 bike path. SOF 19-25.2
4 SRR and its Claim Against Gypsum
5 In this litigation, originally commenced by Clark County, SRR filed a cross claim against
6 Gypsum, seeking injunctive relief. SOF 32. SRR contends that the condition regarding access to
7 Highway 159 contained in the NOFA created an immediate restriction on Gypsum’s use of the
8 Highway. SOF 42-43. This claim is apparently based on Ms. Fisher’s belief that the condition of
9 no access onto Highway 159 will remain in effect until Gypsum is issued a building permit. SOF
10 43.
11 SRR has also suggested that Gypsum’s use of the road that travels across BLM land between
12 Gypsum’s property and Highway 159 is illegal, claiming that Gypsum had lost its “rights of way”
13 across BLM land. SOF 33. However, SRR made its allegations to this effect with the knowledge
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14 the BLM has recognized Gypsum’s right to cross BLM land for two separate reasons. SOF 6, 34.
15 SRR is unable to present any evidence to show that anyone, let alone anyone that SRR is
16 authorized to represent, has been harmed by Gypsum’s use of Highway 159. Indeed, SRR’s claimed
17 harm arising from Gypsum’s use of Highway 159 amounts to nothing more than SRR’s own belief
18 that Gypsum’s vehicles pose a danger to other persons using the road. SOF 35. Its contention that
19 Gypsum’s vehicles impose a danger to others on the road is based on the fact that a friend of Ms.
20 Fisher’s was killed more than a decade ago, in a crash that involved a construction vehicle – a
21 vehicle and driver that had no relationship to Gypsum. SOF 36. SRR has not presented any
22 evidence that Gypsum’s vehicles have been involved in accidents or violated traffic laws.
23 Furthermore, SRR admits to having oversold claims made in response to questions about
24 damages. It could not support its claim that property values in the area decreased and has admitted
25
26 2
Such a goal is obviously in keeping with the interests of SRR’s founder and perennial president, Heather
27 Fisher. SOF 20. Ms. Fisher, together with her husband, operate a bicycle shop and bicycle tour company,
and conduct multiple daily tours in Red Rock Canyon. SOF 23-24.
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1 that it has no support for claims regarding the number of vehicles that would be used in the event
2 the development proceed. SOF 38 and 41.
3 IV. LEGAL ARGUMENT
4 This Court should grant summary judgment to Gypsum on all claims against it. SRR does
5
not have the authority to bring an action against Gypsum on behalf of third parties, as no statute
6
authorizes such representation. Furthermore, SRR has admitted that it has no members, and cannot
7
identify the persons it purports to represent, and therefore cannot attain associational standing.
8
9 Additionally, SRR cannot satisfy the elements of its cause of action, because it cannot show that
10 Gypsum is precluded from the use of Highway 159. Nor can SRR show that anyone has suffered
11 harm, or that harm is imminent, as the result of Gypsum’s use of Highway 159.
12
Summary judgment is appropriate when a plaintiff is unable to prove any necessary element
13
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of its claims. In reviewing a motion for summary judgment, “the evidence, and any reasonable
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14
inferences drawn from it, must be viewed in a light most favorable to the nonmoving party.” Wood
15
v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Where the nonmoving party
16
17 bears the burden of persuasion at trial, the party moving for summary judgment may satisfy its
18 burden of production for that motion by either submitting evidence negating an essential element of
19 the nonmoving party’s claim, or by pointing out that there is an absence of evidence to support the
20
nonmoving party’s claim. Cuzze v. University and Community College System of Nevada, 123 Nev.
21
598, 602-603, 172 P.3d 131, 134 (2007). Once the moving party satisfies its burden of production,
22
the non-moving party “bears the burden to ‘do more than simply show that there is some
23
24 metaphysical doubt’ as to the operative facts in order to avoid summary judgment being entered in
25 the moving party's favor.” Wood v. Safeway, Inc., at 732, 121 P.3d at 1031. Instead, “[t]he
26 nonmoving party must, by affidavit or otherwise, set forth specific facts demonstrating the existence
27 of a genuine issue for trial.” Id. (emphasis added) (internal quotations omitted).
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Here, the evidence shows that SRR has no standing to seek injunctive relief.
1
2 A. SRR DOES NOT HAVE STANDING TO SEEK INJUNCTIVE RELIEF

AGAINST GYPSUM
3 SRR does not have standing to seek injunctive relief against Gypsum. No statute authorizes
4 an entity such as SRR to assert the claims of third parties. The question of standing addresses
5 whether the plaintiff has a sufficient interest in the litigation. Schwartz v. Lopez, 382 P.3d 886, 894
6 (Nev. 2016); see Szilagyi v. Testa, 99 Nev. 834, 838,673 P.2d 495, 498 (1983) (citing Harman v.
7 City & Cty. of San Francisco, 7 Cal.3d 150,101 Cal.Rptr. 880,496 P.2d 1248, 1254 (1972)((“The
8 fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a
9 court”)). A plaintiff must have suffered a personal injury and not merely a general interest that is
10 common to all members of the public. See, e.g., Doe v. Bryan, 102 Nev. 523, 525–26, 728 P.2d 443,
11 444–45 (1986) (requiring plaintiffs, who sought to have criminal statute declared unconstitutional,
12 to first demonstrate a personal injury, i.e., that they were arrested or threatened with prosecution
13 under the statute).

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14 1. There is No Statutory Authorization for SRR to Represent the Claims of

15 Third Parties.
16 Because SRR brings its claim purporting to represent others, it has no standing to assert its
17 cross claim against Gypsum. In Nevada, the plaintiff must be the “real party in interest,” who is
18 the person who actually has the right to assert the claim alleged. NRCP 17(a), Szilagyi v. Testa, 99
19 Nev. 834, 838, 673 P.2d 495, 498 (1983). Third parties are not permitted to raise the claims
20 belonging to others. Deal v. 999 Lakeshore Ass'n, 94 Nev. 301, 304, 579 P.2d 775, 777 (1978).
21 Only a person who is authorized by statute may sue in the person’s own name, while presenting a
22 claim belonging to another. High Noon at Arlington Ranch Homeowners Ass'n v. Eighth Judicial
23 Dist. Court, 402 P.3d 639, 645-46 (Nev. 2017). There is no statutory authority permitting SRR to
24 bring its claim for injunctive relief.
25 Because SRR does not have standing to assert its cross claim against Gypsum, Gypsum is
26 entitled to judgment in its favor.
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LV 421159490v1
1 2. SRR Does Not Have Associational Standing.
2 As shown above, pursuant to NRCP 17(a), statutory authority is needed for an entity to bring
3 the claims of third parties in litigation. The Federal courts have a similar rule, but have adopted the
4 doctrine of associational standing. Nevada does not appear to have adopted this doctrine, but even
5 if it had, SRR could not obtain associational standing under such a theory. In order to show
6 representative standing, an association must establish that its members would otherwise have
7 standing to sue in their own right and that neither the claim asserted nor the relief requested requires
8 the participation of individual members in the lawsuit." Warth v. Seldin, 422 U.S. 490, 512, (1975).
9 But SRR does not have members, and therefore, cannot show that its “members” have standing to
10 pursue a claim individually. See Commonwealth ex rel. Brown v. Interactive Media Entm't &
11 Gaming Ass'n, 306 S.W.3d 32, 38 (Ky. 2010) (association that does not reveal its membership
12 cannot achieve associational standing as it cannot show that its members have standing).
13 Accordingly, SRR cannot show that it represents members with standing to bring a claim.
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14 Furthermore, even if its “supporters” could somehow be deemed to be members, SRR has
15 not shown that any individual it purports to represent has suffered the sort of harm necessary to
16 support a claim for injunctive relief to abate a zoning violation. Nevada has recognized that an
17 injunction can issue to abate the violation of a zoning ordinance, finding the violation constitutes a
18 nuisance. See Smith v. Las Vegas, 80 Nev. 220, 223, 391 P.2d 505, 507 (1964); see also CCC
19 30.04.140. Accordingly, a plaintiff who seeks to enjoin a claimed zoning violation must satisfy the
20 requirements to show standing for a nuisance claim. When the cause of action is nuisance, the
21 Plaintiff must show that there has been an “invasion, impairment, or destruction” of a right
22 possessed by the Plaintiff, which right must be “independent, separate, and distinct” from the rights
23 enjoyed by the general public. Fogg v. N. C. O. Railway, 23 P. 840, 439-40 (Nev. 1889) (“the
24 controlling principle which gives the right of action to private individuals to abate a public nuisance
25 is the invasion, impairment, or destruction of a common right which they possess, independent,
26 separate, and distinct from the rights enjoyed by the general public. ”); see also Blanding v. City of
27 Las Vegas, 52 Nev. 52, 69, 280 P. 644, 648 (1929) (requiring property owner to show that he would
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LV 421159490v1
1 suffer a special or peculiar injury different from that sustained by the general public in order to
2 maintain complaint for injunctive relief); Specht v. Big Water Town, 172 P.3d 306, 308-9 (Utah Ct.
3 App. 2007)(plaintiffs must have suffered specific injury from zoning violation to enjoin the
4 violation); Sears v. Hull, 961 P.2d 1013, 69 (Ariz. 1998) (same). The party claiming associational
5 rights to represent others bears the burden of proving that its members have standing. Am.
6 Chemistry Council v. DOT, 468 F.3d 810, 820, 373 U.S. App. D.C. 330 (D.C. Cir. 2006)
7 (association bears burden to prove members have standing).
8 Here, when questioned regarding the harm it purports to have suffered, SRR has alleged that
9 it represents all those “who live near and/or recreate in and around Red Rock Canyon.” SOF 35.
10 The purported harm suffered by these individuals is the purported endangerment of those using
11 Highway 159, because of the presence of Gypsum vehicles. Such a purported “harm” is general to
12 all users of Highway 159, or as SRR itself admits, “everybody.” Accordingly, there is no invasion
13 of a right that is “independent, separate, and distinct” from that suffered by the general public. Thus,
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14 SRR cannot rely on associational standing.

15 B. SRR CANNOT PREVAIL ON ITS CLAIM FOR INJUNCTIVE RELIEF
BECAUSE IT CANNOT ESTABLISH THAT A WRONGFUL ACT IS
16 OCCURRING.
17
Even if SRR could show it had standing, it cannot satisfy the elements of its claim. A party
18
who seeks injunctive relief must show 1) success on the merits of the claim that a wrongful act is
19
occurring, 2) that there is no adequate remedy at law, and 3) that the balance of equities favors the
20
party seeking the injunction. State Farm Mut. Auto. Ins. v. Jafbros Inc., 109 Nev. 926, 928, 860
21
P.2d 176, 178 (1993). No court can provide an injunctive remedy unless it has found a wrong. Id.
22
(“[T]he existence of a right violated is a prerequisite to the granting of an injunction”). Here, SRR
23
cannot establish that Gypsum’s use of Highway 159 is wrongful. Accordingly, as a matter of law,
24
SRR’s claim must fail. State Farm Mut. Auto. Ins. v. Jafbros Inc, 860 P.2d 176, 928 (Nev. 1993)
25
(“It is axiomatic that a court cannot provide a remedy unless it has found a wrong”).
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LV 421159490v1
1. SRR Cannot Prove that Gypsum’s Use of Highway 159 is Precluded by
1 the NOFA.
2
SRR’s claim that Gypsum is barred from using Highway 159 is based upon the condition
3
imposed in the 2011 Concept Plan Approval. However, the plain language of the Notice of Final
4
Action makes clear that the condition of “no use” applies in the future. Specifically, the NOFA
5
states ““You will be required to comply with all conditions prior to the issuance of a building
6
permit or a business license whichever occurs first.” SOF 23 (emphasis added). If, as SRR
7
contends, the condition was an immediate requirement, then the language of the NOFA would have
8
been “You are required to comply with all conditions” or “You must comply with all conditions.”
9
These constructions employ the present tense, while “will be required to comply” employs the
10
future tense. Indeed, the verb “will” is defined as “used to express futurity.”3 Thus, the condition
11
in question is a requirement that must be satisfied in the future.
12
Indeed, the plain meaning of this sentence is that a building permit will not be issued unless
13
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the stated conditions have been satisfied. Nothing in this sentence can logically be construed to
14
mean that, by virtue of the issuance of the approval of the Concept Plan for a future development,
15
immediate restrictions have been placed on any existing, approved uses of the property. Moreover,
16
SRR’s purported understanding, i.e., that Gypsum’s use of Highway 159 is precluded until a
17
building permit is issued, SOF 44, is simply nonsensical. Such an interpretation would mean that
18
Gypsum could resume access to Highway 159 once it is issued a building permit.
19
Not surprisingly, Clark County does not agree with the interpretation claimed by SRR. To
20
the contrary, Clark County expressly stated that the conditions set forth in the NOFA listed
21
conditions that would have to be satisfied in future iterations of the proposed development, before
22
any building permit for a final approved plan would issue. SOF 13-16. As the agency empowered
23
under its code to enforce its ordinances, it is entitled to considerable deference. Meridian Gold v.
24
State, Dep't of Taxation, 81 P.3d 516, 635 (Nev. 2003) (courts give “great deference to an agency's
25
interpretation of a statute that the agency is charged with enforcing”).
26
3
27 See
https://www.merriamwebster.com/dictionary/will?utm_campaign=sd&utm_medium=serp&utm_source=json
28 ld, last viewed June 11, 2018.
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LV 421159490v1
1 Since neither the plain language of the NOFA, nor the interpretation given to such language
2 by Clark County and its planning employees supports SRR’s theory, SRR can present no evidence
3 to support its claim that Gypsum’s use of Highway 159 is wrongful, or in violation of any currently
4 applicable zoning requirements. Summary judgment is therefore appropriate on SRR’s sole claim
5 against Gypsum.
6 V. CONCLUSION
7 This Court should grant Gypsum’s motion for summary judgment because SRR cannot
8 show that it is entitled to injunctive relief. Moreover, SRR does not have standing as it cannot, as a
9 matter of law, present the claims of third parties as its own before the Court. Nor can it show that it
10 is authorized to represent any individual who has standing to seek injunctive relief against Gypsum.
11 And finally, even if SRR had standing, it cannot show that Gypsum has violated any zoning
12 ordinance or that it is precluded in any fashion from the use of Highway 159. Because, as a matter
13 of law, SRR cannot show that it can prevail on its claims, judgment should enter in favor of
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14 Gypsum on SRR’s cross claim.

18 MARK E. FERRARIO, ESQ.
Nevada Bar No. 1625
Nevada Bar No. 8994
21
3773 Howard Hughes Parkway, Suite 400 N
22 Las Vegas, NV 89169
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LV 421159490v1
1 CERTIFICATE OF SERVICE
2 Pursuant to Nev. R. Civ. P. 5(b)(2)(D) and E.D.C.R. 8.05, I certify that on this day, I caused
3 a true and correct copy of the forgoing Gypsum Resources, LLC’s Motion for Summary Judgment
4 on Save Red Rock’s Claim for Injunctive Relief to be filed and served via the Court’s Wiznet E-
5 Filing system. The date and time of the electronic proof of service is in place of the date and place
6 of deposit in the mail.
7 DATED this 15th day of June 2018
8
/s/ Andrea Lee Rosehill
9 An employee of Greenberg Traurig, LLP
10
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LV 421159490v1

Gypsum Resources Motion For Summary Judgement

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Gypsum Resources Motion For Summary Judgement

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1 MSJ

MARK E. FERRARIO, ESQ.

11 Counsel for Gypsum Resources, LLC

8 Defendant/Cross-Defendant Gypsum Resources, LLC (“Gypsum”), by and through its

10 Summary Judgment (“Motion”).

(702) 792-9002 (fax)

14 DATED this 15th day of June, 2018.

15 GREENBERG TRAURIG, LLP

16 /s/ Tami D. Cowden_________

22 Counsel for Gypsum Resources, LLC

12 TAMI D. COWDEN, ESQ.

13 WHITNEY L. WELCH-KIRMSE, ESQ.

(702) 792-9002 (fax)

Nevada Bar No. 12129

16 Counsel for Gypsum Resources, LLC

(702) 792-9002 (fax)

(702) 792-9002 (fax)

14 2. Gypsum Resources is engaged in mining operations at the Gypsum property under a

12 Diamond Hill’.” Exhibit 1, TAC at ¶27.

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25 relevant here, the following topics to be included in the deposition:

27 development of the Gypsum Property;

13 Deposition of Save Red Rock (Heather Fisher), 14:4-20.

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13 otherwise supported its causes. Id. at 29:15-25.

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13 witness responded, “Nothing.” Id. at 33:2-17.

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referenced application,” do you see that?

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15 obtained a building permit.

20 Highway 160. Ex. 9, at 41:11-22, 42:21-43.

23 Production of Documents, Response to Request No. 1.

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(702) 792-9002 (fax)

(702) 792-9002 (fax)

2 A. SRR DOES NOT HAVE STANDING TO SEEK INJUNCTIVE RELIEF

13 under the statute).

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14 1. There is No Statutory Authorization for SRR to Represent the Claims of

(702) 792-9002 (fax)

(702) 792-9002 (fax)

14 SRR cannot rely on associational standing.

(702) 792-9002 (fax)

(702) 792-9002 (fax)

14 Gypsum on SRR’s cross claim.

23 Counsel for Gypsum Resources, LLC

(702) 792-9002 (fax)

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