Electronically Filed
4/8/2019 4:54 PM
Steven D. Grierson
CLERK OF THE COURT

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ORDR
WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP
DON SPRINGMEYER, ESQ.
Nevada BarNo. 1021
CHRISTOPHER W. MIXSON, ESQ.
Nevada Bar No.1 0685
3556 E. Russell Road, Second Floor
Las Vegas, Nevada 89120
(702) 341-5200IFax: (702) 341-5300
dspringmeyer@wrslawyers.com
cmixson@wrslawyers.com

7 CENTER FOR BIOLOGICAL DIVERSITY
JUSTIN AUGUSTINE, ESQ. (Pro Hac Vice)
8 Senior Attorney
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1212 Broadway, Suite 800
9 Oakland, CA 94612
(503) 910-9214
10 jaugustine@biologicaldiversity.org
11 Attorneys Jor Defendant-Intervenor
Center for Biological Diversity
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EIGHTH JUDICIAL DISTRICT COURT

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IN AND FOR CLARK COUNTY, NEVADA

IS
CLIVEN BUNDY, an Individual,

Case No. A-18-779718-C

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Dept. No.: XXIV

Plaintiff,
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vs.
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STATE OF NEVADA, ex rei, and CLARK
19 COUNTY, a Subdivision of the State of
Nevada; DOES I-X; and ROE
20 CORPORATIONS XI-XX,
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ORDER GRANTING DEFENDANTINTERVENOR CENTER FOR
BIOLOGICAL DIVERSITY MOTION
FOR JUDGMENT ON THE PLEADINGS

Defendants,
and
CENTER FOR BIOLOGICAL DIVERSITY,
Defendant-Intervenor.

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On January 24,2019, Defendant-Intervenor Center for Biological Diversity (the "Center")

27 filed a Motion for Judgment on the Pleadings ("Motion") seeking to dismiss Plaintiff Cliven
28 Bundy's ("Bundy") Complaint. On February II, 2019, Defendant Clark County filed a joinder to

Order Granting Motion for Judgment on the Pleadings
Case Number: A-18-779718-C

 1 the Center's Motion. On March 5, 2019, Bundy filed an Opposition to the Motion, and on March
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12, 2019, the Center filed a Reply.
The Center's Motion came on for hearing on Tuesday, March 19,2019, at 9:00 a.m., with

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4 appearances by Craig Mueller of Mueller Hinds & Assoc. Chtd. for Bundy, Chris Mixson of Wolf,
5 Rifkin, Shapiro, Schulman & Rabkin LLP and Justin Augustine of the Center for Biological
6 Diversity for the Center, and Chris Hanley of the Hanley Law Firm PLLC for Defendant Clark
7 County.
8 I.

BUNDY'S COMPLAINT

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Bundy's Complaint seeks declaratory relief for three causes of action. First, Bundy seeks a

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declaration of the Court that all public lands within the State of Nevada, including the federal

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Bunkervile grazing allotment where Bundy grazes cattle without a federal permit, are "the

12 property of the People of Nevada and Clark County, unencumbered and free of any claim by The
13 United States of America" on the basis that such lands were conveyed to the State of Nevada upon
14 statehood and are no longer owned by the United States.
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Bundy's second cause of action seeks a declaration of the Court that the same federal

16 public lands are owned by the State of Nevada because the State of Nevada and Clark County are
17 obligated to and owe to Bundy "the duty to defend the interests of the 1983 Nevada Constitution
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and ... N.R.S. §§ 321.596 - 321.599."

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Bundy's third cause of action asselis-"for Nevada, the rights of Nevada and it's [sic]

20 People"-a superior claim to title and actual ownership of all ofthe public lands within Nevada
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and Clark County and therefore seeks an order of the Court quieting title to the federal public

22 lands in the name of the State of Nevada and Clark County.
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II.

THE CENTER'S MOTION

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The Center seeks dismissal of Bundy's Complaint pursuant to NRCP 12(c) and 12(h)(2)

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for failing to state a claim upon which relief can be granted. The Center argues Bundy's claims

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are barred by the doctrine of issue preclusion in light of previous adverse federal court decisions to

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which Bundy was a patiy. Bower v. Harrah's Laughlin, Inc., 125 Nev. 470, 480-83 (2009),

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describes the elements of issue preclusion when considering the preclusive effect of a previous
-2Order Granting Motion for Judgment on the Pleadings

 1 federal decision. Under Bower, when a party against whom issue preclusion is asserted in the
2 current litigation was a party to prior federal litigation, then issue preclusion bars that party's
3 claims in the current litigation when a) the issue in the CUlTent litigation is identical to the issue
4 alleged in the prior litigation, b) the issue was actually litigated in the prior litigation, and c) the
5 resolution of the issue was a critical and necessary part of the earlier judgment. Bower, 125 Nev.
6 at 480.
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The Center argues that the elements of issue preclusion are met here because Bundy's

8 claims rely on an identical issue that Bundy previously litigated and lost-whether federal public
9 land within the boundaries of Nevada belongs to the United States or to the State of Nevada. The
10 Center points to tln'ee previous federal cases where this issue was presented by Bundy and rejected
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by the court: Us. v. Bundy, Case No. CV-S-98-531, 1998 U.S. Dist. LEXIS 23835 (D. Nev. Nov.

12 3,1998) ("Bundy f'), affirmed 178 F.3d 1301 (9th Cir. 1999); US. v. Bundy, Case No. 2:12-cv13

0804,2013 U.S. Dist. LEXIS 95294 (D. Nev. July 9, 2013) ("Bundy If'); us. v. Bundy, Case No.

14 2: 16-cv-00046, 2016 U.S. Dist. LEXIS 182437 (D. Nev. Dec. 20, 2016) ("Bundy III," Magistrate
15 Report and Recommendation), dismissed on other grounds, 2018 U.S. Dist. LEXIS 18998 (D.
16 Nev. Jan. 8,2018).
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Additionally, the Center argues that Bundy's second cause of action fails to state a claim

18 because it seeks to compel enforcement of Nevada statutes that were previously found by a court
19 to be invalid and unenforceable. See Us. v. Nye County, 920 F. Supp. 1108, 1114 (D. Nev. 1996).
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Bundy opposes the Center's Motion by arguing that issue preclusion does not apply

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because Bundy is seeking declaratory relief for the first time in this case, and because new facts-

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the designation of Gold Butte National Monument-are present. The Center responds that

23 Bundy's request for declaratory relief, as opposed to some other relief, is not relevant to the
24 applicability of issue preclusion to the legal issues raised in Bundy's Complaint, and that the new
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facts Bundy raises are likewise inconsequential with respect to issue preclusion.

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-3Order Granting Motion for Judgment on the Pleadings

 1 III.

DISCUSSION

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It is painfully obvious that the claims asserted by Bundy in the instant matter rest upon a

3 fundamentally flawed notion advanced by Bundy since 1998 regarding ownership of federal
4 public lands in Nevada. For two decades, Bundy has made the same claims that federal public
5 lands within Nevada belong not to the United States, but instead to the State of Nevada. Three
6 federal court decisions-Bundy L Bundy II, and Bundy Ill-have now considered and rejected
7 Bundy's repeated aTguments. Despite this long history of adverse decisions in the federal courts,
8 Bundy brings this case in state court, arguing again that federal public lands within Nevada do not
9 belong to the United States. Bundy'S new state case, however, is barred by the doctrine of issue
10 preclusion because Bundy was a party to those prior cases and, as the United States Supreme
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Court has explained, "once an issue is actually and necessarily determined by a court of competent

12 jill'isdiction, that determination is conclusive in subsequent suits based on a different cause of
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action involving a paTty to the prior litigation." Montana v. United States, 440 U.S. 147, 153

14 (1979).
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A.

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In 1998, in Bundy I, the United States filed a complaint seeking to stop Bundy'S ongoing

The Prior Adverse Decisions

17 illegal grazing oflivestock on federal public lands. Bundy I at *1. Bundy sought dismissal of the
18 govemment's case on the ground that "the federal govemment carmot have authority over lands
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'inside an admitted state.'" Id. at * 12-13. The United States District Court for the District of

20 Nevada rejected Bundy's theory of public lands ownership and m1ed that "federal lands located
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within states are federal territories under federal jill'isdiction," and the "Bunkerville Allotment

22 where Bundy is grazing his livestock falls within the definition of 'public lands' administered by
23 the Secretary of the Interior through the BLM." Id. at *13. The Court further explained that "[a]n
24 examination of the history of the lands in question further establishes federal ownership .... The
25 public lands in Nevada are the propeliy of the United States because the United States has held
26 title to those public lands since 1848, when Mexico ceded the land to the United States." Id. at
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Fomieen years later in 2012, in Bundy IL the United States filed another action against
-4Order Granting Motion for Judgment on the Pleadings

 1 Bundy over Bundy's unlawful grazing of livestock on federal land. Bundy II at * 1. Bundy again
2 defended his unlawful conduct based on his theory that the federal court lacked jurisdiction
3 because the United States does not own the federal public lands in question. Bundy II at *4. The
4 federal district court again rejected Bundy's argument on the same basis as Bundy I-the federal
5 public lands in Nevada are the propeliy of the United States, as they have been since 1848 when
6 Mexico ceded the land to the United States. Bundy II at *4-5.
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In 2016, in Bundy III, Bundy sought to dismiss a criminal indictment against him for lack

8 of federal jurisdiction, again on the same ground that the federal government does not have any
9 ownership interest in land within the State of Nevada. Bundy III at *8-9. Magistrate Judge Leen
10 rejected Bundy's arguments, explaining that:
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For more than two decades, Mr. Bundy has argued that the federal government
does not have an ownership interest in any land in Nevada. However, this
argument has been soundly and consistently rejected by every court to consider the
issue. [***] [T]his court is bound by, and required to apply, controlling Supreme
COUli and Ninth Circuit precedent.

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Bundy III at *23. In lUling against Bundy, Magistrate Judge Leen cited to Us. v. Gardner,

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107 F.3d 1314 (9th Cir. 1997), which "definitively resolved the question of ownership regarding

16 the federal public lands within Nevada." Bundy III at *24. In addition, Magistrate Judge Leen
17 pointed out "that the State of Nevada has agreed with judicial interpretations regarding federal
18 public lands within its borders." Bundy III at *27. Magistrate Judge Leen's rejection was
19 accepted in Chief Judge Navarro's subsequent adoption of Magistrate Judge Leen's Report and
20 Recommendation. Bundy III, Order Accepting and Adopting Report and Recommendation, 2017
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U.S. Dist. LEXIS 7525, at *1 (D. Nev. Jan. 18,2017).

Bundy L Bundy IL and Bundy III all cite to Us. v. Gardner, 107 F.3d 1314 (9th Cir. 1997),
a case Bundy was not a party to. This Ninth Circuit decision rejected the argument that grazing

24 livestock on federal public lands in Nevada without a pelmit does not constitute trespass because
25 the federal government does not have title to the land on which the grazing took place. Gardner,
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107 F.3d at 1317. The Ninth Circuit explained that "Courts in the United States have uniformly

27 found that title to the land first passed to the United States through the Treaty [of Guadalupe
28 Hidalgo in 1848]." Id. "Thus, as the United States has held title to the unappropriated public
-5Order Granting Motion for Judgment on the Pleadings

 1 lands in Nevada since Mexico ceded the land to the United States in 1848, the land is the property
2 of the United States." Id.

Bundy's Defenses to Issue Preclusion Lack Merit

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B.

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Despite these adverse federal decisions against him, Bundy argues that issue preclusion

5 does not apply here because this is the first time he seeks the specific relief of declaratory relief
6 with regard to the ownership of the lands at issue. This argument, however, has no merit because
7 Bundy's specific claims for relief are not relevant to the applicability of issue preclusion. See
8 Taylor v. Sturgell, 553 U.S. at 892 ("Issue preclusion ... bars 'successive litigation of an issue of
9 fact or law actually litigated and resolved in a valid court detennination essential to the prior
10 judgment,' even if the issue recurs in the context of a different claim. "); B&B Hardware, Inc. v.
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Hargis Indus., 135 S. Ct. 1293, 1303 (2015) ("[T]he general rule is that '[w]hen an issue offact or

12 law is actually litigated and determined by a valid and final judgment, and the determination is
13 essential to the judgment, the determination is conclusive in a subsequent action ... , whether on the
14 same or a different claim.").
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Bundy also asserts that alleged new facts preclude the application of issue preclusion in

16 this case, pointing to former President Barack Obama's December 28, 2016 Executive Order
17 designating Gold Butte National Monument under the Antiquities Act of 1905. This defense fails
18 for the same reason that Bundy's other claims fail-Bundy's legal claim that Gold Butte National
19 Monument was designated on public land that belongs to the State of Nevada, not to the United
20 States, is foreclosed by prior adverse federal court decisions to which Bundy was a party. That
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identical issue was asked and answered in Bundy 1, Bundy 11, and Bundy Ill.
It is simply delusional to maintain that all public land within the boundaries of Nevada

belongs to the State of Nevada. Because this issue has been raised and lost by Bundy in previous

24 litigation, issue preclusion acts as a complete bar to Bundy's first and third causes of action.

Bundy's Second Claim for Relief Fails to State a Claim

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C.

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Bundy's second cause of action fails to state a claim upon which relief can be granted

27 because the statutes it seeks to enforce-NRS 321.596-321.599-are preempted by federal law
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and have been ruled invalid and unenforceable. The Nevada legislature lacks authority to
-6Order Granting Motion for Judgment on the Pleadings

 1 unilaterally revoke federal ownership of public lands in Nevada. In Us. v. Nye County, a federal
2 district court addressed the validity ofNRS 321.596-321.599, concluding that "the statutory claim
3 is unsupported, unconstitutional, and fails as a matter oflaw." 920 F. Supp. at 1114. Moreover,
4 the State of Nevada has repudiated these statutes-as discussed in Nye County, "while Nevada has
5 statutorily claimed the public lands within Nye County, it now concedes that this claim is
6 constitutionally untenable." Id. Because NRS 321.596-321.599 have been deemed
7 unconstitutional and untenable, and have been renounced by the State of Nevada, Bundy cannot
8 compel this Court to enforce them, and notably, Bundy's Opposition Brief does not even attempt
9 to defend them.
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II

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After review and consideration of the record, the papers on file herein, oral presentations
of counsel, and with good cause appearing therefore:

IT IS HEREBY ORDERED that the Center's Motion for Judgment on the
Pleadings is GRANTED and judgment shall be entered in favor of Defendant-Intervenor Center

14 for Biological Diversity and Defendant Clark County, and against Plaintiff Cliven Bundy, as to all
15 claims and causes of action asserted in Plaintiffs Complaint;
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IT IS HEREBY FURTHER ORDERED that Plaintiffs request for an extension

17 of time to oppose the Center's Motion for Judgment on the Pleadings is DENIED; and
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IT IS HEREBY FURTHER ORDERED that Defendant Clark County's Motion

19 to Dismiss is DENIED as moot because Plaintiffs claims against Clark County are fully resolved
20 in Clark County's favor by Clark County's joinder in the Center for Biological Diversity's
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successful Motion for Judgment on the Pleadings.

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/L.A. /
DATEDthis1daYOf~'2019.

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-7Order Granting Motion for Judgment on the Pleadings

 1 Respectfully submitted,
WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP

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DON. RIN
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CH STOPHE W. MIXs6N, ESQ.
evada Bar No.1 0685 /
3556 E. Russell Road, Second Floor
Las Vegas, Nevada 89120
(702) 341-5200/Fax: (702) 341-5300
cmixson@wrslawyers.com

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CENTER FOR BIOLOGICAL DIVERSITY
JUSTIN AUGUSTINE, ESQ. (Pro Hac Vice)
1212 Broadway, Suite 800
Oakland, CA 94612
503-910-9214
jaugustine@biologicaldiversity.org

Attorneys for Intervenor
Center for Biological Diversity
Approved as to form and content:

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17 Craig A Mueller, Esq.
Susana Reyes, Esq.
18 MUELLER HINDS & ASSOCIATES
600 S. Eighth Street
19 Las Vegas, NV 89101
Attorney for PlaintiffCliven Bundy
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Agnes N. Hal)ley,;Ssq.
Chris Hanley, E,'lq.
24 HANLEY LAW FIRM, PLLC
2300 W. Sahara Ave., Suite 800
25 Las Vegas, NV 89102
26 Attorney for Defendant Clark County
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-8Order Granting Motion for Judgment on the Pleadings