1 1 1 1 MRCN WESTERN ENVIRONMENTAL LAW CENTER DANIEL GALPERN, ESQ. (pro hac vice) Oregon Bar No. 0 1 Lincoln Street Eugene, OR 01 (1) -1 galpern@westernlaw.org WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP CHRISTOPHER W. MIXSON, ESQ. Nevada Bar No. E. Russell Road, Second Floor Las Vegas, Nevada 1 (0) 1-0/Fax: (0) 1-00 cmixson@wrslawyers.com Attorneys for Petitioners Moapa Band of Paiutes Sierra Club SIERRA CLUB, a California non-profit corporation, & THE MOAPA BAND OF PAIUTE INDIANS, a federally recognized Tribe of Indians, vs. Petitioners, SOUTHERN NEVADA HEALTH DISTRICT, & SOUTHERN NEVADA DISTRICT BOARD OF HEALTH, NV ENERGY, Respondents. Intervenor-Respondent. DISTRICT COURT CLARK COUNTY, NEVADA Case No.: A--0 Dept. No.: I MOTION OF PETITIONERS FOR RECONSIDERATION OF DECISION GRANTING MOTION OF INTERVENOR NV ENERGY TO DISMISS, AND TO SET A BRIEFING SCHEDULE FOR PETITIONERS THIRD AMENDED PETITION FOR WRIT OF CERTIORARI/ MANDAMUS OR, IN THE ALTERNATIVE, PETITION FOR JUDICIAL REVIEW Rule 0 Motion
1 1 1 1 COME NOW PETITIONERS, by and through their above counsel of record herein, and submit their MOTION FOR RECONSIDERATION OF THE DECISION GRANTING MOTION OF INTERVENOR NV ENERGY TO DISMISS, AND TO SET A BRIEFING SCHEDULE FOR PETITIONERS THIRD AMENDED PETITION FOR WRIT OF CERTIORARI/MANDAMUS OR, IN THE ALTERNATIVE, PETITION FOR JUDICIAL REVIEW. This Motion is made and based upon the provisions of NRCP 0, all of the Court s files and records herein, the following Memorandum of Points and Authorities, and all other matters which may be brought to the Court s attention at the time of the hearing hereon. DATED this nd day of February, 1. WESTERN ENVIRONMENTAL LAW CENTER /s/ Dan Galpern Dan Galpern, Esq. (pro hac vice) WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Christopher W. Mixson, Esq. Attorney for Petitioners Moapa Band of Paiutes & Sierra Club -- Rule 0 Motion
1 1 1 1 NOTICE OF MOTION PLEASE TAKE NOTICE that the foregoing MOTION FOR RECONSIDERATION OF THE DECISION GRANTING MOTION OF INTERVENOR NV ENERGY TO DISMISS, AND TO SET A BRIEFING SCHEDULE FOR PETITIONERS THIRD AMENDED PETITION FOR WRIT OF CERTIORARI/MANDAMUS OR, IN THE ALTERNATIVE, PETITION FOR JUDICIAL REVIEW will be heard before the above-entitled Court on the day of 1 at am/pm, or as soon thereafter as counsel may be heard. DATED this nd day of February, 1. WESTERN ENVIRONMENTAL LAW CENTER /s/ Dan Galpern Dan Galpern, Esq. (pro hac vice) WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Christopher W. Mixson, Esq. Attorney for Petitioners Moapa Band of Paiutes & Sierra Club -- Rule 0 Motion
1 1 1 1 MEMORANDUM OF POINTS AND AUTHORITIES Petitioners Moapa Band of Paiutes (the Tribe) and Sierra Club (collectively, Petitioners) respectfully submit this motion under NRCP 0 seeking the Court s action to rescind its prior decision to dismiss the Petitioners Petition for Writ of Review and to set a briefing and hearing schedule in this case. Petitioners sought review of a decision by the Southern Nevada Health District to approve an application and grant a permit, Landfill Permit LF00-CMF-01 (the Permit), under which NV Energy may massively expand its coal ash landfill. That landfill is adjacent to both the NV Energy Reid Gardner coal-fired power plant and the Reservation of the Tribe. The Court s decision was rendered from the bench on December,, and was based on its determination that Petitioners still had an open administrative avenue for relief, in that the State Environmental Commission (SEC) had set a date for a contested case hearing, on the same set of issues, for March -, 1. Petitioners informed the Court that they were uncertain that the SEC would accept jurisdiction in the matter and actually hear the appeal, and that to clarify the question Petitioners had requested a declaratory judgment by the SEC on its jurisdiction. The Court noted, however, that if the SEC did not accept jurisdiction, then Petitioner s would be able to re-file the instant case. Accordingly, this Court on December, decided to dismiss this matter without prejudice. However, the Court s decision was never entered as a final judgment. As such, the case remains open, as is discussed below. Further, the basis for the Court s earlier decision to grant the motion to dismiss no longer applies, as is also discussed below. Petitioners here seek to resume their prosecution of this matter, in the interest of efficiency before this same Court, and request a briefing schedule and hearing date. Concurrently with this motion, Petitioners will seek the Court s leave to file an Amended Petition for Writ of Review. I. The Court s Decision to Grant NV Energy s Motion to Dismiss is Void and Not Effective All judgments with the possible exception of default judgments must be signed by the -- Rule 0 Motion
1 1 1 1 judge and filed with the clerk. Nev. R. Civ. P. (c) ( [The filing with the clerk of a judgment, signed by the judge, or by the clerk, as the case may be, constitutes the entry of such judgment, and no judgment shall be effective for any purpose until the entry of the same. ). Thus, oral pronouncements and unfiled written orders must be reduced to writing and formally entered with notice to be legally effective. Div. of Child & Fam. Services, Dept. of Human Resources v. Eighth Jud. Dist. Ct., 1 Nev., 1 (0); Rust v. Clark Co. School Dist., Nev., - (). Judges are free to reconsider their decisions until a written order is discharged. Id.; see also Tener v. Babcock, Nev., 0 (1). NRCP 0(b) provides that, [o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding [where] the judgment is void. The rule further provides that it does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding... Id. In this matter, the Court s December, oral decision to grant NV Energy s Motion to Dismiss was never reduced to a written order and/or filed with the clerk. For whatever reason, NV Energy appears not to have committed the Court s decision to writing for the Court s consideration, and no signed written judgment was filed with the Clerk. 1 Accordingly there was no entry of judgment and so, no effective judgment. NRCP (c). The Court is therefore at full liberty to reconsider its prior decision to grant the Motion to Dismiss, and rescind that decision, on the ground that the decision is void for want of never being reduced to written form and signed, or otherwise legally ineffective for want of being entered by the Court. Furthermore, as discussed below, the facts on which the Court s decision was made have materially changed. II. (e). The Court s Decision was Based Upon the Assumption that Review Would be Undertaken by the State Environmental Commission (SEC) As indicated above, this Court on December, decided to grant Intervenor NV 1 Further, and of necessity, no notice of entry of judgment was provided to Petitioners pursuant to NRCP -- Rule 0 Motion
1 1 1 1 Energy s Motion to Dismiss the case, albeit without prejudice, under the assumption that the SEC would hear Petitioners appeal on essentially the same set of issues. As explained by Petitioners in their papers and at the hearing on the Motion to Dismiss, Petitioners had very good reason to believe that the SEC would decline jurisdiction, and therefore Petitioners had filed a Motion for Declaratory Order with the SEC seeking the SEC to declare formally whether it had jurisdiction to review the landfill permitting decision of the Southern Nevada Health District. On February 1, 1, in a hearing set specifically to decide Petitioners request for a declaratory judgment as to jurisdiction, the SEC voted -1 that it had no authority to hear Petitioners appeal. There remain no other administrative avenues available to Petitioners to challenge the decisions and actions of the Southern Nevada Health District in approving the application and granting the permit at issue in this matter other than an appeal such as this in the Eighth Judicial District Court. Because this Court s decision to grant the Motion to Dismiss was based upon the NV Energy s belief that the SEC would or should have jurisdiction over the matter, which belief has been finally refuted by the SEC itself, it is now proper for this Court to reconsider and reverse its prior decision and set this matter for briefing and hearing. Petitioners had appealed to the SEC under NAC.(), which states in relevant part, Any person who wishes to appeal from a decision or action of the solid waste management authority may do so. The SEC determined on Feb., 1 that this regulation was always intended to apply to landfill decisions rendered by the Nevada Division of Environmental Protection, but not by other agencies, including local agencies such as in the instant case, where the Southern Nevada Health District functions as the solid waste management authority for Clark County. See Affidavit of Daniel M. Galpern, attached to this Motion as Exhibit 1. -- Rule 0 Motion
III. CONCLUSION On the basis of the foregoing, Petitioners request the Court to reconsider its earlier decision to dismiss the case and to proceed to set a briefing and hearing schedule. 1 1 1 1 Respectfully submitted this d day of February, 1. WESTERN ENVIRONMENTAL LAW CENTER /s/ Dan Galpern Daniel Galpern, Esq. (pro hac vice) Oregon Bar No. 0 1 Lincoln Street Eugene, OR 01 (1) -1 galpern@westernlaw.org Christopher W. Mixson, Esq. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Nevada Bar No. E. Russell Road Las Vegas, Nevada 1 Ph:(0) 1-0/Fx:(0) 1-00 cmixson@wrslawyers.com Attorneys for Petitioners Moapa Band of Paiutes & Sierra Club -- Rule 0 Motion
1 1 CERTIFICATE OF SERVICE I hereby certify that on this nd day of February, 1, a true and correct copy of the foregoing MOTION OF PETITIONERS FOR RECONSIDERATION OF DECISION GRANTING MOTION OF INTERVENOR NV ENERGY TO DISMISS, AND TO SET A BRIEFING SCHEDULE FOR PETITIONER S PETITION FOR WRIT OF CERTIORARI/ MANDAMUS OR, IN THE ALTERNATIVE, PETITION FOR JUDICIAL REVIEW was served by electronically filing it with the Clerk of the Court using the Wiznet Electronic Service system and serving all parties with an email address on record, who have agreed to receive Electronic Service in this action. By /s/ Christie Rehfeld Christie Rehfeld, an Employee of WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 1 1 -- Rule 0 Motion
EXHIBIT 1
ATTACHMENT 1
Daniel M. Galpern Oregon Bar No. 0 Western Environmental Law Center 1 Lincoln St. Eugene, OR 01 galpern@westernlaw.org 1.. Christopher W. Mixson Nevada Bar No. Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP East Russell Rd. Las Vegas, NV 1 cmixson@wrslawyers.com 0.1.0 STATE OF NEVADA STATE ENVIRONMENTAL COMMISSION 1 1 1 1 MOAPA BAND OF PAIUTES, a federally recognized Tribe of Indians, & SIERRA CLUB, a California non-profit Corporation, vs. Petitioners, SOUTHERN NEVADA HEALTH DISTRICT & SOUTHERN NEVADA DISTRICT BOARD OF HEALTH, Respondents. In Re: Appeal of Landfill Permit No. LF00-CMF-01 UNOPPOSED PETITION FOR A DECLARATORY ORDER (FORM #) Petitioners Moapa Band of Paiutes and Sierra Club (Petitioners) submit this unopposed request for an SEC Declaratory Order that the SEC has jurisdiction to hear and decide this appeal Unopposed Petition for a Declaratory Order (Form #)
by the Petitioners of decisions by the Respondent Southern Nevada Health District (SNHD) to approve the application for, and to issue, Landfill Permit LF00-CMF-01 (issued Sept., ) to intervenor NV Energy. 1 1. Name, address, telephone number, and signature of Petitioners. Petitioners are the Moapa Band of Paiutes and the Sierra Club, by and through their legal representatives: 1 Dan Galpern, Attorney Western Environmental Law Center 1 Lincoln St. Eugene, OR 01 galpern@westernlaw.org (1) -1 /s/ Chris Mixson Christopher W. Mixson Nevada Bar No. Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP East Russell Rd. Las Vegas, NV 1 cmixson@wrslawyers.com (0) 1-0 1 1 1 Attorneys for Petitioners Moapa Band of Paiutes & Sierra Club. Specific type of petitioner (individual, partnership, corporation or other) and the exact business or occupation including a description of the business or occupation if necessary. (a) Petitioner Moapa Band of Paiutes is a recognized Indian tribe organized under a Constitution approved by the Secretary of the Interior on April,, and governed by a Tribal Council, with members living on the Moapa Reservation adjacent to the coal ash landfill at issue in this matter. (b) Petitioner Sierra Club is a nonprofit public benefit corporation organized in part to protect and restore the quality of the natural and human environment and public health, with members living in Southern Nevada and throughout the nation. 1 In open court on Nov.,, counsel for Respondent SNHD and Respondent- Intervenor NV Energy stated that the SEC properly has jurisdiction over Petitioners administrative appeal in this matter. To that end, those same parties have also stated that they support a request such as this one by Petitioners to the SEC seeking the SEC s determination in a declaratory order that it has jurisdiction over this matter. -- Unopposed Petition for a Declaratory Order (Form #)
1 1 1 1. Exact and specific nature of order or opinion sought, including delineation of the regulations, statutory provision, or Commission decision involved. Petitioners seek a declaratory order from the SEC that the SEC has jurisdiction to conduct a contested case hearing over, and to decide Petitioners appeal of, decisions by the Southern Nevada Health District (SNHD) approving NV Energy s application for and issuing Landfill Permit LF00-CMF-01 (Sept., ). NAC B. provides, in pertinent part, that any member of the public may petition the Commission for a declaratory order... as to the applicability of any statutory provision, Commission regulation or decision as required by form. Petitioners have appealed to the SEC from the SNHD s decisions at issue in this matter pursuant to a regulation of the Commission, NAC.(), which provides, in pertinent part: Any person who wishes to appeal from a decision or action of the solid waste management authority may do so. Such an appeal must be made in writing in accordance with the State Environmental Commission s procedural rules. Petitioners have appealed in writing in accordance with the SEC s procedural rules. See Petitioners filings with the SEC: Form # (Nov., ; as updated Nov., ); More Definite and Detailed Statement of the Matters Asserted (Oct., ). NAC. was promulgated by the SEC pursuant to its authority granted under NRS.0(1), which statute provides that The State Environmental Commission shall adopt regulations concerning solid waste management systems, or any part thereof, including regulations establishing standards for the issuance, renewal, modification, suspension, revocation and denial of, and for the imposition of terms and conditions for, a permit to construct or operate a disposal site. The SNHD is a district board of health of a health district created pursuant to NRS. or.0 and, pursuant to NRS. and., functions as the solid waste management authority in Clark County. See also SNHD Solid Waste website: http://www.southernnevadahealthdistrict.org/solid-waste/index.php. NAC. is, moreover, consistent with other relevant statutes governing the -- Unopposed Petition for a Declaratory Order (Form #)
1 1 1 1 relationship between the SEC and the SNHD. See e.g. NRS.(1) ( The State Environmental Commission and the district board of health of a health district... shall adopt regulations that are necessary to establish and carry out a program of issuing permits for municipal solid waste landfills ); NRS.0(1)(d) (providing for agency review of the programs of other solid waste management authorities in the State for issuing permits... and ensuring compliance with the terms and conditions of such permits, the regulations of the State Environmental Commission, the laws of this State... ); NRS.0()(b) (providing for SEC review of plans for solid waste management systems ); NRS.0() (providing that district boards of health may not adopt solid waste rules that conflict with regulations adopted by the State Environmental Commission).. Petitioners reason for requesting the declaratory order and/or advisory opinion including whether in behalf of self-interest, the public interest, or any other legal entity's or individual's interest. Petitioners request a declaratory order on behalf of Petitioners, on behalf of the members of Petitioners, and on behalf of the public interest. Petitioners have appealed to the SEC from the SNHD s approval of a permit application and subsequent issuance of a permit to NV Energy to modify and expand NV Energy s coal ash landfill at its Reid Gardner facility in Moapa, NV. See Petitioners filings with the SEC: Form # (Nov., ; as updated Nov., ); More Definite and Detailed Statement of Matters Asserted (Oct., ). The Tribe opposes expansion of the coal ash landfill on the grounds, among others, that such expansion will undermine the Tribe s traditional way of life, impair the health of members particularly the health of the youngest and oldest generation hasten death, and contaminate the environment. The Sierra Club opposes expansion of the coal ash landfill at issue here on the grounds, among others, that such an expansion will impair public health and will further degrade the environment in contravention of law. Petitioners sought a contested case hearing over the lawfulness of SNHD s approval of the Permit application, its issuance of the Permit, and the adequacy of that Permit to safeguard the environment, as outlined in Petitioners Oct., More Definite and Detailed Statement of Matters Asserted, submitted pursuant to NRS B.1. -- Unopposed Petition for a Declaratory Order (Form #)
1 1 1 1 The SEC has slated this matter for a contested case hearing commencing Jan. 1, 1 in Las Vegas. For purposes, among others, of efficiency, and to avoid unnecessary expenditure of public resources, and to avoid unnecessary expenditure of its members resources, and to avoid unnecessary expenditure of judicial resources, petitioners request that the SEC issue a declaratory order determining that it has jurisdiction to hear and decide this matter. Accordingly, Petitioners requests the declaratory order on their own behalf and on behalf of the public interest.. An expression of what particular group(s) of people would be most affected, either positively or negatively, by declaratory order, and/or advisory opinion. This declaratory order would have a profound effect on Petitioners and potentially on other similarly situated members of the public who are aggrieved by pollution generated by, leaking through, emitted thereby or discharged from coal ash landfills that may be permitted under the authority of this or another health district operating as a local solid waste management authority.. Date of petition: November, Respectfully submitted this rd day of November,. Dan Galpern, Attorney Western Environmental Law Center 1 Lincoln St. Eugene, OR 01 galpern@westernlaw.org (1) -1 /s/ Chris Mixson Christopher W. Mixson Nevada Bar No. Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP East Russell Rd. Las Vegas, NV 1 cmixson@wrslawyers.com (0) 1-0 -- Unopposed Petition for a Declaratory Order (Form #)
CERTIFICATE OF MAILING I hereby certify that on the th day of November,, a true and correct copy of the foregoing UNOPPOSED PETITION FOR A DECLARATORY ORDER (FORM #) was served via electronic mail, with a hard copy to be placed in the United States mail, postage prepaid, to the following persons and attorneys of record in the above-captioned matter: 1 1 1 1 John B. Walker State of Nevada State Environmental Commission 01 South Stewart St., Suite 001 Carson City, Nevada 01- jbwalker@ndep.nv.gov Thomas Woodworth, Esq. Assistant General Counsel NV Energy West Sahara Ave., MS 0A Las Vegas, Nevada 1 twoodworth@nvenergy.com Attorney for NV Energy Daniel M. Galpern Western Environmental Law Center 1 Lincoln St. Eugene, OR 01 galpern@westernlaw.org Attorney for Moapa Paiute Tribe & Sierra Club Terry Coffing, Esq. David Duncan, Esq. Marquis, Aurbach & Coffing 001 Park Run Drive Las Vegas, Nevada 1 tcoffing@maclaw.com dduncan@maclaw.com Attorneys for SNHD Daniel J. Dunn, Esq. Hogan Lovells US LLP th Street, Suite 0 Denver, CO 0 dan.dunn@hoganlovells.com Attorneys for NV Energy /s/ Christie Rehfeld An employee of Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP -- Unopposed Petition for a Declaratory Order (Form #)