Howard D. McKibben

This case involves a nonprofit organization and individuals seeking a preliminary injunction to halt the Bureau of Land Management's planned roundup of over 1,700 excess wild horses from the Triple B Complex in Nevada, alleging violations of the Wild Free-Roaming Horses and Burros Act and NEPA. The court evaluated the motion under the Winter factors, focusing on the plaintiffs' likelihood of success on the merits and whether serious questions existed regarding the BLM's determination of appropriate management levels (AMLs), the accuracy of horse population data, and the adequacy of the environmental assessment. The court found that the AMLs had been properly established through prior planning processes without objection, that the BLM had statutory authority to remove excess horses to maintain ecological balance under a multiple-use mandate, and that the plaintiffs failed to show the data or analysis was deficient. It also rejected claims that livestock grazing impacts or alternatives like increasing AMLs needed further consideration in this context. The opinion concludes the analysis by addressing related evidentiary and procedural points without granting the injunction.

environmentfederal powerprocedure

This case is a federal habeas corpus petition under 28 U.S.C. § 2254 in which petitioner Samuel Griffin challenges his 2002 Nevada conviction for armed robbery following a guilty plea, raising claims including ineffective assistance of counsel, due process, and equal protection violations related to his plea and appeal rights. The court first addressed procedural issues, finding that the equal protection claim in Ground 1-6 was unexhausted because it had not been fairly presented to the state supreme court with the same federal legal theory, and it dismissed that claim on the merits as plainly meritless since ineffective assistance allegations do not implicate equal protection. Regarding other grounds, the court assumed arguendo that some lacked specificity but determined it was more efficient to review the exhausted claims on the merits under the deferential AEDPA standard, which permits relief only if the state court's decision was contrary to or an unreasonable application of clearly established Supreme Court precedent or based on an unreasonable factual determination.

criminal lawprocedurefederal powercivil rights

This case concerns environmental organizations' challenge to the Bureau of Land Management's approval of a large-scale wind energy facility in Spring Valley, Nevada, via a Finding of No Significant Impact and Environmental Assessment rather than a full environmental impact statement. Plaintiffs sought a temporary restraining order or preliminary injunction under Federal Rule of Civil Procedure 65 to prevent the BLM from authorizing construction and site clearing scheduled to begin in March 2011, citing potential harm to greater sage-grouse habitat and bat populations near Rose Guano Cave. The court reviewed the project's details, including its renewable energy benefits, economic impacts, mitigation commitments such as habitat enhancement funding, and the BLM's fast-track process under NEPA, along with public comments and tiering to prior programmatic EIS documents. The opinion analyzed the factual and procedural background to assess the motion's merits without completing an EIS.

environmentbusiness & regulatory

This case is a qui tam action brought by Nevada under the Nevada False Claims Act alleging that Merck failed to report certain discounted and free Zocor and Vioxx products provided to hospitals under incentive programs in its Best Price submissions to the federal government under the Medicaid Rebate Statute. Merck moved to dismiss on grounds that the complaint misread the rebate statute, did not show knowing falsity, was barred by conflict preemption, and failed to plead fraud with particularity under Rule 9(b). The court denied the motion, holding that the statute's text requires inclusion of the contingent discounts and free goods in best price calculations, that the reports could be knowingly false, that state enforcement is not preempted by federal law, and that the allegations satisfied the pleading requirements.

healthcarebusiness & regulatorycriminal law

In Morin v. United States, plaintiff Vicky Morin sued the federal government under the Federal Tort Claims Act, alleging that her exposure to jet fuel dumped by Navy aircraft near her workplace and homes caused her to develop a malignant plasmacytoma brain tumor. The parties filed cross-motions for summary judgment, with the United States arguing the claim was untimely and lacked proof of causation, while the plaintiff sought judgment on causation issues. The court granted summary judgment to the defendant, holding that the plaintiff failed to present admissible expert evidence establishing either general causation (that jet fuel can cause this type of cancer) or specific causation (that it did so in her case). The core reasoning focused on the inadequacy of the plaintiff's sole expert report, which offered only a conclusory statement without proper methodology such as differential diagnosis to rule out other causes, and thus could not support the required element of causation in a negligence claim.

torts & liabilityprocedure

The case concerns a claim of unjust enrichment brought by the plaintiff against Aristocrat Leisure Limited, a parent corporation, based on revenues allegedly derived from the actions of its two subsidiaries. Defendant moved for judgment on the pleadings under Fed.R.Civ.P. 12(c), arguing that the parent could not be held liable. The court granted the motion and dismissed the claim. It reasoned that under established principles of corporate law, a parent is not liable for its subsidiaries' acts absent allegations showing the subsidiaries were sham entities used to perpetrate injustice or a substantial and continuing connection between the parent and the wrongful conduct, neither of which was pleaded here.

business & regulatoryproceduretorts & liability

The case involved American Structural Composites, Inc. (ASC) suing the International Conference of Building Officials (ICBO), ICBO Evaluation Services, Inc. (ICBO-ES), and RADCO after ICBO-ES refused to certify ASC's wall panel system, which ASC claimed caused its bankruptcy. The central issue was the enforceability of a release clause in the certification application that barred claims against ICBO and ICBO-ES arising from denial of the application. The court granted summary judgment to ICBO and ICBO-ES, holding that the clause was triggered by ICBO-ES's refusal to certify without additional information, was clear and explicit, and was valid under California law when applied to sophisticated commercial entities that voluntarily entered the agreement. The court extended discovery on ASC's remaining claims against RADCO but did not address other contract clauses.

business & regulatoryprocedure

In Employers Insurance Co. of Nevada v. United States, the plaintiff insurer sought subrogation for workers' compensation benefits paid after an employee was injured in a brake-failure accident while operating equipment under an emergency lease contract with the Bureau of Land Management. The United States moved to dismiss the consolidated negligence and loss-of-consortium actions, arguing lack of subject matter jurisdiction due to sovereign immunity. The court granted the motion, holding that the Federal Tort Claims Act does not waive immunity here because Nevada workers' compensation statutes treat the BLM as a statutory employer immune from common-law suits when the work is normally performed by its own employees rather than contractors. The ruling applied the Meers test to determine statutory employer status and noted that the United States is liable under the FTCA only to the same extent as a private employer under state law.

torts & liabilitylabor & employmentfederal power

The case concerns a U.S. Postal Service employee who took medical leave and sued several agency supervisors, alleging they violated the Family and Medical Leave Act by failing to restore him to an equivalent position. The defendants moved to dismiss, contending that the FMLA does not authorize individual liability against employees of public agencies. The court denied the motion, ruling that the statute's definition of "employer" expressly includes public agencies and any person acting directly or indirectly in the interest of an employer. The opinion relied on the plain text and structure of 29 U.S.C. § 2611(4), which separately extends coverage to public agencies and to individuals acting on an employer's behalf, without creating an exemption for government supervisors.

labor & employment

This case involved a union suing a general contractor under Nevada Revised Statutes 608.150 to recover unpaid wages, vacation pay, and fringe benefits owed by a subcontractor on construction projects. The defendant moved to dismiss, arguing that the state statute was preempted by ERISA because it served as an alternative enforcement mechanism for employee benefit plans. The court denied the motion, holding that ERISA does not preempt NRS 608.150. The reasoning was that the statute creates an independent obligation for general contractors in an area of traditional state regulation, does not refer to or have a meaningful connection with ERISA plans under the narrowed preemption analysis from Travelers and subsequent cases, and applies only to non-ERISA entities like general contractors without affecting plan administration.

labor & employmentbusiness & regulatoryfederal power

The case involved plaintiff Tom Sarnelli seeking a refund of $7,763.87 in federal income taxes withheld from his 1997 wages, arguing that the IRS lacked authority to withhold without making a formal assessment. The court denied the plaintiff's motion for summary judgment and granted the defendant's cross-motion, ruling that the plaintiff was not entitled to a refund. The reasoning was that tax liability arises from receiving income as defined under 26 U.S.C. § 61, and wages are considered taxable income; moreover, the Internal Revenue Code requires payment of taxes without the need for an assessment, notice, or demand. The plaintiff's claim that wages are not income was rejected as frivolous based on established precedent.

taxes

This case involves appeals by the United States and the Pyramid Lake Paiute Tribe from a 1997 Nevada State Engineer ruling on remand concerning 14 applications to transfer water rights appurtenant to 56 parcels in the Truckee-Carson Irrigation District. The district court reviewed the Engineer's parcel-by-parcel determinations on whether the rights had been perfected, abandoned, or forfeited under Nevada law, following prior Ninth Circuit remands in the long-running Alpine litigation. The Engineer found nonuse on many parcels for extended periods, often with the land converted to roads, residential areas, or natural vegetation, but concluded that only three parcels involved unperfected or nontransferable rights and that no rights had been abandoned or forfeited. The court addressed objections to these findings, applying standards of clear and convincing evidence for nonuse and considering factors like intra-farm transfers and vested pre-Project rights, while deferring certain legal issues such as the impact of a post-Alpine III statute on perfection requirements.

environmentproperty

This case involved consolidated federal diversity actions brought by Diamond State Insurance Company seeking declaratory judgments on whether an assault and battery exclusion in its commercial liability policies applied to underlying state-court personal injury claims against its insureds arising from altercations on their premises. The district court granted motions to dismiss, declining to exercise jurisdiction over the declaratory relief actions. The court reasoned that under Brillhart v. Excess Insurance Co. and Wilton v. Seven Falls Co., along with Ninth Circuit precedent such as Employers Reinsurance Corp. v. Karussos and American National Fire Insurance Co. v. Hungerford, federal courts should generally decline jurisdiction in insurance coverage disputes presenting only state-law issues when parallel state proceedings are pending, due to concerns of comity, judicial economy, avoidance of forum shopping, and the availability of Nevada's own declaratory judgment statute. The court noted that resolution of coverage would require factual findings overlapping with the state tort actions and that the insurer could have pursued relief in state court.

business & regulatoryproceduretorts & liability

The case involved individual plaintiffs challenging the U.S. Forest Service's approval of a mining company's expansion project in a national forest, alleging that the agency's Final Environmental Impact Statement violated NEPA by inadequately analyzing environmental impacts, reasonable alternatives, and mitigation measures. The action was brought under the APA, and the intervenor mining company moved to dismiss for failure to exhaust administrative remedies or, alternatively, for summary judgment. The court denied the motion to dismiss, holding that exhaustion would be futile because the plaintiffs had already raised identical issues in a prior administrative appeal filed through their corporation. On summary judgment, the court granted judgment to the defendants, concluding that the FEIS contained a reasonably thorough discussion of the project's probable environmental consequences and that the agency's approval was not arbitrary or capricious.

environmentfederal powerbusiness & regulatory

The case involved Hampton International Communications, a publisher of commercial tabloids for the computer industry, suing the Las Vegas Convention and Visitors Authority (LVCVA) after trade show lessees prevented Hampton from distributing its materials on walkways and other areas of the Las Vegas Convention Center during COMDEX and CES events. Hampton claimed the restrictions violated its First and Fourteenth Amendment rights to free speech, seeking injunctive relief and damages. The district court adopted the magistrate judge's report and recommendation, granting the LVCVA's motion for summary judgment and entering judgment in its favor. The court found that the restriction on Hampton's commercial speech did not violate the First Amendment and that no genuine issues of material fact remained for trial. The ruling turned on analysis of state action, the commercial nature of the speech, and the scope of the lessees' control over the leased property.

free speechcivil rightsbusiness & regulatory

In this case, the Hopkins filed a Chapter 13 bankruptcy petition and challenged an IRS proof of claim for income taxes, penalties, and interest for 1989 through 1993, asserting that they were not taxpayers under the Internal Revenue Code and that their wages did not constitute taxable income. The bankruptcy court granted summary judgment to the United States, allowing the IRS claims for 1989-1991 and dismissing the Hopkins' other claims. On appeal, the district court affirmed, holding that certificates of assessments and payments provided presumptive proof of valid assessments and proper notice, shifting the burden to the Hopkins who presented no counter-evidence. The court also rejected the Hopkins' arguments as frivolous and found no genuine issue regarding the adequacy of IRS notices under the Internal Revenue Code.

taxesprocedurefederal power

The case concerned the NCAA's challenge to Nevada statutes (Nev.Rev.Stat. §§ 398.155—398.255) that imposed procedural requirements on NCAA enforcement proceedings involving UNLV and its employees, seeking an injunction against their application and a declaratory judgment that they were unconstitutional. The court addressed claims that the statutes violated the Commerce Clause by burdening interstate commerce, impaired existing contractual obligations under the Contract Clause, infringed on the right to associate under the First Amendment, and were vague and overbroad under the Due Process Clause. Jurisdiction was based on federal question and civil rights statutes. The core reasoning focused on the statutes' extraterritorial reach, which imposed burdens primarily on out-of-state entities without adequate political safeguards, as highlighted by references to Supreme Court precedents on interstate regulation and the NCAA's role in maintaining uniform national standards for intercollegiate athletics.

business & regulatoryfederal powerfree speech

This case involved trustees of an electrical workers' pension fund suing subcontractors and sureties on performance and contractor license bonds for unpaid union wages and fringe benefits on construction projects, after the general contractors filed for bankruptcy. The surety Fidelity settled the claims and then sought indemnification from the Stoddards under the bond agreement, leading to cross-motions for dismissal and summary judgment. The court granted summary judgment to Fidelity, holding that the indemnification clause allowed good-faith settlements, the Stoddards had adequate notice of the proceedings and negotiations, and they had waived notice rights while failing to request litigation or post collateral to block the settlement.

labor & employmentbusiness & regulatory

Homeowners in Pleasant Valley, Nevada, filed a private nuisance lawsuit against the operator of a nearby geothermal power plant, alleging that noise and hydrogen sulfide emissions caused health issues, water pollution, reduced property values, and offensive odors. The district court granted the defendant's motion for summary judgment on all claims and dismissed the water contamination claim with prejudice. The court reasoned that plaintiffs failed to present competent evidence linking the plant's emissions or noise to their alleged harms, that the plant complied with all applicable regulations, that any interference was not substantial or unreasonable for a normal person, and that property devaluation claims required a prior finding of nuisance. Claims involving other chemicals or physical injuries were rejected for lack of supporting evidence or causation.

environmentpropertytorts & liability

The case involved Sally Conforte seeking a preliminary and permanent injunction to halt the IRS from selling certain real properties formerly held by her and her husband, an order quieting title to the properties, and damages under Bivens and 42 U.S.C. § 1985, all stemming from unpaid federal income and payroll taxes incurred in operating the Mustang Ranch brothel. The court denied the motion for a temporary restraining order and preliminary and permanent injunction. The core reasoning was that the Anti-Injunction Act barred the suit because Conforte had not shown a likelihood of success on the merits, the balance of hardships favored the government, and she possessed an adequate alternative remedy under 26 U.S.C. § 7433 for any alleged IRS misconduct during tax collection; the properties had been transferred to the United States pursuant to stipulations in a prior bankruptcy proceeding to satisfy the tax debts if the brothel itself was not sold.

taxespropertyprocedurebusiness & regulatory