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Brent T. Kolvet, Esq. Nevada Bar No. 1597 Brandon R. Price, Esq. Nevada Bar No. 11686 Thorndal, Armstrong, Delk, Balkenbush & Eisinger 6590 S. McCarran Blvd., Suite B Reno, Nevada 89509 (775) 786-2882 Attorney for Defendants, Pershing County Board of Commissioners, Pat Irwin, Carol Shank, Darin Bloyed, and Richard Machado IN THE UNiTED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA BLACK ROCK CiTY, LLC, Plaintiff, v. PERSHING COUNTY BOARD OF COMMISSIONERS and PAT IRWIN, in his official capacity as Chairman, Pershing County Board of Commissioners, and CAROL SHANK, in her official capacity as Vice-Chairman, Pershing County Board of Commissioners, and DARN BLOYED, in his official capacity as Pershing County Commissioners, and JAMES SHIRLEY, in his official capacity as District Attorney, Pershing County, Nevada, Case No. 3:12-cv-00435-RCJ-VPC

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DEFENDANTS MOTiON TO DISMISS PLAIN11FFS COMPLAINT

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and RICHARD MACHADO, in his official capacity as Sheriff, Pershing County, Nevada,
Defendants.

rI4ORNOAL. ARMSTRONG, SLI BALKENIIJ4 590 S. Bhd. #2W ,m. ?4,v.d. 09509 175) 156-2582

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COME NOW Defendants, PERSHING COUNTY BOARD OF COMMISSIONERS, PAT IRWIN, CAROL SHANK, DARIN BLOYED, AND RICHARD MACHADO, by and through their attorneys, Thomdal, Armstrong, Delk, Balkenbush & Eisinger, and pursuant to Fed. R. Civ. P. 12(b)(6), hereby submit their motion to dismiss Plaintiff BLACK ROCK CITY LLCs Complaint for Declaratory and Injunctive Relief and Damages (filed on August 16, 2012 as Doe.

No. 1) on the grounds that it fails to state a claim upon which relief may be granted.
This motion is made and based upon the memorandum of points and authorities filed herewith, all pleadings and papers on file herein, and any other evidence the Court may wish to consider.

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I4ORNDAL.ARMSTRONG. LK, BALENPUSH EJSIW;ER

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION The instant action stems from a dispute between Plaintiff, Black Rock City, LLC (Plaintiff), and Pershing County officials concerning Pershing Countys enactment and enforcement of a permitting process which affects an event known as Burning Man. Plaintiff has filed the instant declaratory relief action against the Pershing County Board of Commissioners and the above-named Board members in their official capacities. In its Complaint, Plaintiff 1

asserts the following causes of action against the Defendants: (1) declaratory relief based upon
the theory of federal preemption (first and second causes of action), (2) declaratory relief regarding the constitutionality of various laws (third and fourth causes of action), (3) declaratory relief regarding alleged violations of the Due Process Clause of the Fourteenth Amendment (fifth cause of action), and (4) breach of contract under Nevada law (sixth cause of action). For the reasons discussed below, all of the claims asserted in Plaintiffs Complaint are completely without merit. Even if the allegations contained in Plaintiffs Complaint are true, the Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) as it fails to a state a claim upon which relief may be granted.

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Actions brought against a government official in his or her official capacity is the equivalent of an action brought against the government entity of which the official is a part. See Mitchell v. Dupnik, 75 F.3d 517, 527(9th Cir. 1996).

S.Rvd.#2
95O9

75) 786.2*52

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II. STATEMENT OF FACTS

The following is a brief discussion concerning those facts which are pertinent to the claims which have been asserted by Plaintiff. Each year Pershing County, Nevada is the site of an annual event known as Burning Man (the Event) which is held in the Black Rock Desert for approximately one week. See Plaintiffs Complaint, 2. While the Event takes place within the boundaries of Pershing County, it is specifically held on land which is managed by the Bureau of Land Management (BLM). Id. at 4. The Event itself is organized and operated by a limited liability company called Back Rock City LLC (Plaintiff). Id. at fi2, 15. The Event is largely an outdoor party that is attended by more than 50,000 people. Id. at ff3, 22, 26. As recent as 2011, a CNN website recognized the Event as one of the worlds top 10 party destinations. See CNN International Webs ite: http://www.cnngo.comlexplorationslplay/worlds-best-party-spots-5035 1 5?page=0,0. Plaintiff is required to obtain a yearly permit from the BLM in order to hold the event in the Black Rock Desert. See Plaintiffs Complaint, 4. BLMs authority to require a permit from Plaintiff to hold the Event stems from the Federal Land Policy & Management Act (FLPMA) and the Federal Lands Recreation Enhancement Act (REA). See 43 U.S.C. 1701 et seq. and 16 U.S.C. 6801 et seq. The BLM permit specifies Plaintiffs rights and obligations with respect to the Event and sets forth standards and provisions pertaining to the conduct of the festival in accordance with federal law. Id. at ff4, 28. While the BLM permit requires Plaintiff to comply with all state and local laws, BLM does not have jurisdiction to prosecute any violations of State law, including matters pertaining to the consumption of alcohol or food. See Exhibit C to Plaintiffs Complaint, Burning Man 2011 Operating Plan, IV(c)(5). The BLM 2

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)ELK, BALNRus14 r EISINGR 590 s. nit 2 o. N,v.d *5C9 775) 76-2S02

The Burning Man Operating Plan is incorporated by reference into the BLM Permit. See Exhibit B to Plaintiffs Complaint, Burning Man 2012 Special Recreation Permit Stipulations, p. 1.
. . . . .

Although a court may generally not consider materials outside of the pleadings when considering a motion to dismiss premised upon FRCP 1 2(b)(6), documents which are referenced in the complaint and are submitted as part of the complaint may be considered in a motion to dismiss where the authenticity of such materials are not challenged. See Branch v. Tunnel!, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds.
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i5 s. Blvd. #21X1 o.Nvvth89Yi9 7Th 7B-2BS2
)YLK, RALKENeU,N k E1SNGER

requires Plaintiff to pay for costs incurred by state and local agencies for the provision of various services, such as law enforcement.

See Plaintiffs Complaint, TI 4, 31. The BLM permit

specifically directs Plaintiff to contract with the Pershing County Sheriffs Office (the Sheriffs Office) for the presence of law enforcement services. Id. at fi 4, 29. Since 2006, Plaintiff annually entered into law enforcement agreements with the Pershing County Sheriffs Office for the procurement of law enforcement services during the Event. Id. at 32. In 2004, Pershing County enacted a festival ordinance, which required an organizer of an outdoor event consisting of more than 1,000 individuals to obtain a license and pay a fee. Id. at

fl 5, 38.

See also Exhibit E to Plaintiffs Complaint, Pershing County, Nev. Code

5.16.020.

Said statute was enacted under the police powers of Pershing County and pursuant to the provisions of NRS 244.354 et seq., which require that organizers of any outdoor assembly consisting of more than 1,000 people acquire a license/permit for the event by the board of county commissioners of the county in which the event is held. See Plaintiffs Complaint, 5. A review of the festival ordinance reveals that the purpose of requiring a County permit for large outdoor events is to ensure the enforcement of state and local laws, and to preserve the health, safety, and general welfare of the public. See Exhibit E to Plaintiffs Complaint. Permits issued under the Festival Ordinance of Pershing County do not share the same purpose as the BLM permit, which is solely for recreation/use of federally managed lands. In 2005, Pershing County improperly entered into a written agreement with Plaintiff, which provided that the Burning Man Event would be exempted from the scope of the Countys Festival Ordinance in exchange for yearly payments to the County and County charities. See Plaintiffs Complaint, 40. The terms of that agreement are described in Plaintiffs Complaint. The Agreement was amended in 2011. Id. at 41. Said agreements were void because they violated Nevada law. See Exhibit Q to Plaintiffs Opposition. On February 1, 2012, the Pershing County Board of Commissioners exercised their legislative authority and enacted a revised amendment to the Festival Ordinance. Id. at 52. The amendment included a provision which changed the manner in which the permit fee for outdoor assemblies was to be calculated. Id. By way of the amendment, applicants of outdoor events

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containing more than 1,000 people would be required to pay a fee of $1.50 per attendee per day, mainly to help defray law enforcement costs. Id. The revised Festival Ordinance went into effect October 1, 2012. Id. Between January and May of 2012, Plaintiff and Pershing County entered into discussions for purposes of negotiating the law enforcement agreement for the provision of law enforcement services for the 2012 Event. Id. at 55. In May of 2012, Pershing County allegedly submitted a proposed law enforcement agreement, which included a provision that was intended to revoke the 2005 and 2011 Agreements between Plaintiff and the County. Id. at 58. Plaintiff refused to enter into a law enforcement agreement with Pershing County. Id. at 59. Instead, Plaintiff applied for a permit to hold the 2012 Event pursuant to Pershing Countys revised festival ordinance. Id. at 773 The law enforcement costs associated with the Event was charged to Plaintiff as part of the license fee of Pershing Countys festival ordinance. Id. at 161. Believing that it should not be required to apply for an outdoor assembly license and comply with the provisions set forth in Pershing Countys revised festival ordinance, Plaintiff filed the instant declaratory relief action. For the reasons discussed below, Plaintiffs Complaint should be dismissed pursuant to FRCP 12(b)(6) as it fails to state a claim upon which relief can be granted.

III. ARGUMENT A.
Standards for Dismissal Under FRCP 12(b)(6). Pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must be dismissed if there is no set of facts within the complaints framework that would entitle the plaintiff to relief. See Hutchison v. KFC

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Co,p., 809 F. Supp. 68, 70 (D. Nev. 1992). A court may dismiss a complaint as a matter of

law if it lacks a recognized legal theory, the factual assertions in the complaint are not plausible, or because it lacks sufficient facts to support a claim. See al-Kidd v. Ashcroft, 580 F.3d 949, 956

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LLK. BALKENIUSH .590S hCRI.,L#2 N.,,.I. 895(Y 775) 786-28S2

Plaintiff alleges that it had no choice but to apply for a permit under Pershing Countys revised festival ordinance because Pershing County officials notified it that Burning Man was no longer exempted from the festival ordinance as the 2005 and 2011 agreements were legally void. See Plaintiffs Complaint, 76. 5

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(9th Cir. 2009); SmileCareDental Group v. Delta Dental Plan Cal., Inc., 88 F.3d 780, 783(9th

Cir. 1996). In analyzing motions to dismiss, the court must accept the plaintiffs factual
allegations as true and must construe the complaint in the light most favorable to the plaintiff. See Madison v. Graham, 316 F.3d 867, 869(9th Cir. 2002). However, legal conclusions cast in the form of factual allegations in the complaint are not entitled to an assumption of truth. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754(9th Cir. 1994). B. The Pershing County Board of Commissioners Should be Dismissed as a Defendant from this Action Because It is Not a Suable Entity. In its Complaint, Plaintiff names the Pershing County Board of Commissioners as a party Defendant to this case. See Plaintiffs Complaint. The Board of County Commissioners is not a suable entity and it should therefore be dismissed as a Defendant in this case. See Wayment v. Holmes, 912 P.2d 816, 819(1996).

C.
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Any and All Claims Asserted Against Sheriff Richard Machado Should be Dismissed from the Instant Action As He Had No Personal Involvement With the Facts Giving Rise to Plaintiffs Claims. In order for an individual to be liable, there must be a showing of personal participation in

the alleged constitutional violation. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002); Barren v. Harringon, 152 F.3d 1193, 1194(9th Cir. 1998). Plaintiffs Complaint contains no allegations demonstrating that Sheriff Machado had any involvement with the facts giving rise to Plaintiffs claims. In fact, the only actions which are attributed to Sheriff Machado in connection with this case is that he handed a revised law enforcement budget to Plaintiff. See Plaintiffs Complaint, 57. Such conduct has nothing to do with Plaintiffs claims. Because Plaintiffs Complaint contains no allegations which demonstrate that Sheriff Machado participated in any conduct which allegedly violated Plaintiffs rights, he should be dismissed as a Defendant from the instant lawsuit. See Jones, 297 F.3d at 934 and Barren, 152 F.3d at 1194.

D.

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OINDAL.ARMROG, )ELK RALKENaUI I LISINGEI 5 S MvC.v. Blvd. 2IXI l.o. 19509 775) 796-2*92

Plaintiffs First and Second Causes of Action Should be Dismissed Because the Festival Laws Enacted by the Nevada Legislature and Pershing County Board of Commissioners are Not Preempted by Federal Law. Plaintiff is seeking a declaratory judgment decreeing that Nevadas festival statute (NRS

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244.354 et seq.) Pershing Countys festival ordinance, and Pershing Countys revised festival

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ordinance (Pershing County, NV Code 5.16.020) (collectively referred to herein as the Festival Laws) are preempted by federal law. A plaintiff who seeks declaratory relief must allege and prove the following: (1) that he suffered or is threatened with a concrete and particularized legal harm, and (2) there is a likelihood that a similar harm will occur in the future. See Canatella v. State of Caifomia, 304 F.3d 843, 852(9th Cir. 2002). The concept of federal preemption is rooted in the Supremacy Clause of the United States Constitution, which provides that the Constitution, and the Laws of the United States.. shall
.

be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding. U.S. Const. art. VI, ci 2. See also Calif. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 849(9th Cir. Cal. 2004). Federal law can preempt state law in one of two ways. Kennedy v. Collagen Corp., 67 F.3d 1453, 1456 (9th Cir. Cal. 1995). Congress may either expressly state its intent to preempt state law in the language of a statute, or Congress may imply its intent to preempt through the structure and purpose of a statute. Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604,97 S. Ct. 1305 (1977). Congress can define explicitly the extent to which its enactments preempt state law. English v. General Electric., 496 U.S. 72, 78(1990). In the case of Altria Group v. Good, 555 U.S. 70, 76 (2008), the U.S. Supreme Court stated that [i]f a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress displacement of state law still remains. There are two forms of implied preemption: (1) conflict preemption, and (2) field preemption. Gade v. National Solid Wastes Management Assn, 505 U.S. 88,98 (1992). Conflict preemption occurs when there is an actual conflict between federal and state law or Congress enacts a federal law which makes compliance with state law impossible. Id. See also Fidelity Federal Say. & Loan Assn v. de la Cuesta, 458 U.S. 141, 153 (1982). Field preemption occurs when Congress passes a statutory scheme so extensive that it covers an entire legislative field to the point where there is no room left for the states to supplement it. Id. Historically, courts have been reluctant to find that state or local laws are preempted by federal law. In analyzing whether preemption applies, courts start with the assumption that the

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police powers of the states are not to be superseded by federal law unless there is a clear purpose of Congress to do so. See New York State Conf of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,655 (1995) and Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Even when a state law is found to be preempted by federal law, it is only preempted to the extent that it actually conflicts with the federal law. English, 496 U.S. at 79. Plaintiff cannot prevail on its first and second causes of action because the Festival Laws are not preempted by federal law. (1) Plaintiffs First Cause of Action is Insufficiently Pled as the Complaint Fails to Identify What Federal Provisions are in Conflict with the Festival Laws.

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rHORNDAL. A1MSrRONG, 901.k, R4LKJNRUSH

A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(aX2). The United States Supreme Court has held that a plaintiff cannot rely on mere labels and conclusions in pleading his or her claims for relief. See Bell Atlantic Corp.
V.

Twombly, 550 U.S. 544, 555, 127 5. Ct. 1955, 1964-65 (2007). In the

case of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the United States Supreme Court determined that [tb survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court further recognized that a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678. Where a complaint pleads facts that are merely consistent with a defendants liability, it stops short of demonstrating that a claim is plausible. Id. The Court, in Iqbal, stated that [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice. Id. Here, Plaintiffs First Cause of Action is not adequately pled under Iqbal because the Complaint fails to allege specific facts which would demonstrate that a conflict exists between federal law and the Festival Laws. Indeed, Plaintiffs Complaint contains no description whatsoever concerning the federal laws which are allegedly in conflict with the Festival Laws. This being so, Plaintiffs First Cause of Action should be dismissed.

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L EISINGEB
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5LK. BALKENRI,SH
590 S. Blvd. #290 Lvo. Nvvvd., 09509 779)790. 2892

(2)

Plaintiffs First and Second Causes of Action are Not Viable Because The Festival Laws Do Not Regulate Conduct in a Field That Congress Intended the Federal Law to Exclusively Occupy.

In the instant action, Plaintiff alleges that the Festival Laws are preempted by federal law because they impose obligations and criteria on the Burning Man Event which are different from and are inherently in conflict with those attendant to a BLM permit. See Plaintiffs Complaint, 86. Plaintiffs first and second causes of action are clearly not based upon a theory of express-preemption because its Complaint contains no reference to a single federal statute which expressly states that it is Congresss intent to preempt those matters raised in the Festival Laws. This is because no such provision exists. Because express-preemption does not apply to this case, Plaintiffs claims must be analyzed under a theory of implied preemption. Based upon the facts contained in the Complaint, Plaintiff cannot prevail under a theory of implied preemption. Plaintiffs claims fail to state a plausible claim for relief under the theory of field preemption because it is undisputed that the Festival Laws do not attempt to regulate conduct in a field that Congress intended the federal law to exclusively occupy. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1060(9th Cir. 2009). As previously discussed, BLMs authority to require a permit from Plaintiff to hold the Event stems from various provisions of the Federal Land Policy & Management Act (FLPMA) and the Federal Lands Recreation Enhancement Act (REA). See 43 U.S.C. 1701 et seq. and 16 U.S.C. 6801 et seq. When analyzing the FLMPA and the REA, along with the federal regulations which apply to those statutes, it is clear that Festival Laws are not preempted by federal law. The FLPMA details the BLMs general land use management authority over the public lands, and establishes outdoor recreation as one of the principal uses of those lands. See 43 U.S.C. 1701(a)(8) and 1731. Special recreation permits are issued under the general authority of the Secretary of the Interior to administer use of the public lands, pursuant to section 302(b) of the FLPMA. See 43 U.S.C. 1732(b). Section 303 of FLPMA authorizes the Secretary of the Interior to promulgate and enforce regulations, and establishes the penalties for violations of the regulations. See 43 U.S.C. 1733. Courts have specifically held that the FLPMA does not preempt state and local laws. See Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001)

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(recognizing that the federal government does not assert exclusive jurisdiction over public lands
within states and that the intended purpose of the FLPMA was not to preempt state law). The REA was passed by Congress as part of the 2005 Omnibus Appropriations Bill and was signed into law by President Bush on December 8, 2004. The REA authorizes the BLM to establish, modify, charge, and collect recreation fees for use of certain federal recreation lands and waters. See 16 U.S.C.

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6802. According to BLM, the purpose of the fees collected under

the REA is to enhance visitor services, including repair, maintenance, and facility enhancement at the federally owned lands. See Bureau of Land Management Website, REA 2005 Implementation Frequently Asked Questions January 25, 2001:
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http:llwww.blm.gov/pgdata/etclmedialib/blmlwo/Planning_and_Renewable_Resourceslrecreatio n_imageslnational....programslrecreation_fees_.Par. 10851 .File.datIREA%20lniplementation%20 FAQ.pdf. The REA provides that it is the sole recreation fee authority and specifically states that [r]ecreation fees charged under this Act shall be in lieu of fees charged for the same purposes under any other provision of law. 16 U.S.C. 68 13(d) (emphasis added). In other words, the REA specifically provides that it shall not affect the rights or authority that States may have in assessing fees for purposes other than recreation. Moreover, the legislative history of the REA provides ample evidence that the permitting scheme it established for recreation on federal lands was not intended to preempt state and local laws such as those which are at issue in this case. When reviewing the legislative history of the Act, it becomes clear that Congress never intended for its provisions to preempt state and local law. On November 19, 2004, Congressman Pombo, a member of the Committee on Resources, submitted Report No. 108-790 to accompany H.R. 3283, which was the bill number that was originally assigned to the REA. The report provided justifications for the bill and addressed the issue of preemption. Under the heading of Preemption of State, Local or Tribal Law, the

report expressly states, [tjhis bill is not intended to preempt any state, local, or tribal law. See
Exhibit 1, H.R. Rep. No. 108-790, pt. 1 at 20(2004). The federal regulations that govern special use permits which are issued by the federal government also demonstrate that the Festival Laws at issue in this case are not preempted by
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federal law. The provisions of 43 CFR 2930 et seq. govern Special Use Permits. 43 CFR 2933.31 provides that a special recreation permit holder must comply with all the general rules of conduct contained in subpart 8365 relating to public safety, resource protection, and visitor comfort. Additionally, 43 CFR 2933.32 provides that a Special Recreation Permit may be revoked if the permit holder commit[s] any of the acts prohibited in subpart 8365. 43 CFR 8365.1-7, specifically provides as follows: State and Local Laws. Except as otherwise provided by Federal law or regulation, State and local laws and ordinances shall apply and be enforced by the appropriate State and local authorities. This includes, but is not limited to, State and local laws and ordinances governing: (a) Operation and use of motor vehicles, aircraft and boats; (b) Hunting and fishing; (c) Use of firearms or other weapons; (d) Injury to persons, or destruction or damage to property; (e) Air and water pollution; (f) Littering; (g) Sanitation; (h) Use of fire; (i) Pets; (j) Forest products; and (k) Caves. Based upon the foregoing, it is clear that the federal government never intended to preempt a states ability to enforce its own local laws and ordinances. The fact that the federal government owns land does not preclude states and municipalities from regulating activities that occur thereon. See Kieppe v. New Mexico, 426 U.S. 529,( 1976) (holding that the federal government does not assert exclusive jurisdiction over the public lands within the states). Courts have consistently upheld the rights of the states to enforce their traditional police powers, even where enforcement may in some ancillary way affect the rights or prerogatives of the federal government. Courts are reluctant to apply the doctrine of preemption in cases where the state law at issue was enacted under the states police power. See Huron Portland Cement v. Detroit, 362 U.S. 440(1960) and Sligh v. Kirkwood, 237 U.S. 52 (1915). In Huron, a shipowner maintained a fleet of five vessels that it used to transport cement to various states bordering the Great Lakes. Id. at 441. While the vessels were docked it was necessary to keep their boilers fired in order to run machinery on deck. Id. When the fires were
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cleaned, they emitted smoke that exceeded the maximum standards allowable under Detroits Smoke Abatement Code. Id. The City of Detroit filed criminal charges against the shipowner for violations of the Code. id. The shipowner brought an action to enjoin the City of Detroit and others from enforcing a city smoke abatement ordinance. Id. The shipowner argued that the vessels and their equipment were inspected, approved, and licensed to operated in interstate commerce in accordance with a comprehensive system of regulation enacted by Congress. Id. The shipowner further argued that the ordinance was unconstitutional as it was preempted by federal law. Id. The Circuit Court refused to grant relief, and the Supreme Court of Michigan affirmed. Id. The shipowner then appealed to the United States Supreme Court. Id. The Court affirmed the decision by the Michigan Supreme Court, fmding that the City ordinance was not preempted by federal law. Id. at 443. The Court found that the ordinance was enacted for the purpose of promoting the health and welfare of the citys inhabitants. Id. at 442. The Court stated, that [liegislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. Id. The Court further stated that [un the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government. Id. Most relevant to the case at bar, the court found that the local ordinance was valid because the purposes of the federal and local laws did not overlap, and therefore, it could not be argued that the federal law preempted the local ordinance. Id. In the instant matter, the requirements and obligations set forth in the Festival Laws exist to ensure compliance of state and local laws, and to protect the safety, health, and welfare of the general public. See Exhibits D, E, and M to Plaintiffs Complaint. The BLM has no jurisdiction over the sale or use of alcohol at the Event and has no jurisdiction to prosecute violations of state and local laws. These matters fall within the traditional police powers of the state, and therefore, are not preempted by federal law. See De Buono v. Nysa-Ila Med. & Clinical Servs. Fund, 520 U.S. 806, 814 (1997); Grand Canyon Dories, Inc. v. Idaho Oufitters & Guides Bd., 709 F.2d 1250, 1252 (9th Cir. 1983). See also Nat! Agricultural Chemicals Assn. v. Rominger, 500 F.
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Supp. 465,470 (E.D. Cal. 1980) (holding that when the preemption issue arises in a subject matter area within the states historic police powers a fmding of preemption may only be made where there is a clear indication of congressional intention to preempt rather than by implication) and See Texas Oil & Gas Corp. v. Phillips Petroleum, 277 F. Supp. 366 (W.D. Okia. 1967)

(recognizing that state law and state police powers extend over federally owned lands unless and
until Congress has determined to deal exclusively with the subject). Finally, the BLM permit which authorized Plaintiff to hold the 2012 Burning Man Event further demonstrates that the federal government never intended to exclusively regulate those matters contained in the Festival Laws. Indeed, the BLM permit contains provisions which specifically require that Plaintiff comply with all state and local laws. See Exhibit B to Plaintiffs Complaint, Burning Man 2012 Special Recreation Permit Stipulations, p. 1., and Exhibit C to Plaintiffs Complaint, Burning Man 2011 Operating Plan,

IV(cX5). The BLM Permit even

requires a local police presence and directs Plaintiff to negotiate with local authorities to provide law enforcement services. See Plaintiffs Complaint, 29. It goes without saying that the Festival Laws which were enacted by the Nevada Legislature and the Pershing County Board of Commissioners constitute state and local laws. If the federal government intended to exclusively control the matters contained in the Festival Laws, the BLM permit would not contain a provision requiring Plaintiff to abide by local laws and would not require the presence of local law enforcement. The responsibility for enforcement of local laws is expressly left to Pershing County. Accordingly, it is an entirely reasonable exercise of the police powers of Pershing County to require that Plaintiff acquire a permit in order to hold the Event.

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DLL 8ALK[TJ1)S&4

(3)

Plaintiffs First and Second Causes of Action are Not Viable Because and No Conflict Exists Between the Festival Laws and Federal Law I the BLM Permit.

Plaintiffs first and second causes of action also fail because Plaintiff cannot demonstrate that conflict preemption exists under the facts alleged in the Complaint. Despite what Plaintiff would like this Court to believe, there is no conflict between the Festival Laws and federal law. As previously set forth herein, the permit required by Pershing County does not share the same purpose as the BLM permit, which is solely for the preservation of federally owned land and the
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enhancement of visitor services on said land. It is well established that a dual permit system required for activity on federally owned land are valid so long as the state permit does not directly conflict with the requirements of the federal permit. See California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987). In Calfornia Coastal, a mining company filed an action in the United States District Court for the North District of California against a state agency, alleging that the state agencys requirement that it receive a state issued permit before it could pursue mining activities on federally owned land under a federal permit was preempted by the Mining Act of 1872. 480 U.S. at 576-77. The mining company filed a motion for summary judgment, which was denied. Id. at 577. The mining company appealed and the United Stated Court of Appeals for the Ninth Circuit reversed, holding that the an independent state permit system to enforce state environmental standards would undermine the Forest Services own permit authority and was therefore preempted. Id. The state agency appealed to the United States Supreme Court. The United States Supreme Court drew a distinction between environmental and land use regulation, and found that state environmental regulation of mining operations on federal land in a state was not preempted by federal land use legislation authorizing the mining operations. Id. at 584-89. Noting that the permit requirement itself is not talismanic, the Court held that if reasonable state environmental regulation is not preempted, [as the Court found it was not] then the use of a permit requirement to impose the state regulation does not create a conflict with federal law where none previously existed. Id. at 589. Similarly, in the case of Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983), the United States Supreme Court held that a state permit system imposing a nuclear waste disposal certification requirement on proposed nuclear power plants in California was not preempted by the Atomic Energy Act permit system regulating the construction and operation of such plants. Id. at 212-16. The Court reasoned that there was no preemption because the primary focus of the state statute was economic feasibility, rather than radiological safety. Id. Any attempt by Plaintiff in arguing that the fees required to obtain a permit under the Pershing County Festival Ordinance conflicts with the REA should be rejected by this Court.
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BALKNIL(

While the REA contains a provision which states that fees charged under the Act shall be in lieu of fees charged under any other provision of law, it is limited to fees which are charged for the same purpose, meaning for the preservation of land and to enhance facilities and visitor services. As previously discussed, the purpose behind Pershing Countys permit is entirely different from BLMs permit. Finally, there is no conflict between the Festival Laws and federal law because the Pershing County code contains a specific provision which cedes authority on the areas where the BLM would have plenary jurisdiction. Section 5.16.105 of the Pershing County Code specifically provides as follows: Public Lands: In the event that an Applicant has also submitted an application to the Bureau of Land Management for a Special Recreation or Use Permit on public lands managed by the Bureau of Land Management (BLM) and the BLM has required and approved a Plan of Operations, to the extent that the plans duplicate requirements, the approval by the BLM of a Plan of Operation shall be accepted and shall not be grounds for denial of a License. In addition to other conditions required by this chapter, any conditions that are made part of the Plan of Operations by the BLM shall be adopted by the Pershing County Board of Conunissioners as being sufficient for the Plan of Operations set forth in this Chapter, provided that all the issues that need to be addressed in a Plan of Operations under this Chapter are addressed. In the event that the BLM Plan of Operations does not cover all the services required under this Chapter, the Applicant shall prepare and file a Supplemental Plan of Operations to cover those aspects not covered in the BLM Plan. An Applicant may submit the fmal BLM approved plan of operations as part of the application to satisfy the requirements for a Plan of Operations herein. See Exhibit M to Plaintiffs Complaint, p. 27. Because the Pershing County permit does not infringe upon BLMs permit and the federal governments ability to secure fees to preserve its lands, federal law does not preempt the Festival Laws. As discussed above, courts have found state and local laws are not preempted if the state is exercising its traditional police powers and is not infringing on an area that Congress has deemed to be of exclusive federal concern. Furthermore, if the enforcement of state laws serves a different purpose than the enforcement of the federal law in question, the state law will be upheld. Based upon the foregoing, Plaintiffs first and second causes of action are not viable, and should therefore be dismissed.

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E.

Plaintiffs Third and Fourth Causes of Action Must be Dismissed Because the Festival Laws are Constitutional. Plaintiff asserts that the Festival Laws are unconstitutional on their face, and as applied.

3
4 5

fl 92-102.

More specifically, Plaintiff claims that the Festival Laws violate the First

Amendment of the United States Constitution. Id. Plaintiff cannot, as a matter of law,

6
7

demonstrate that the Festival Laws violate the First Amendment and, as such, its third and fourth causes of action should be dismissed. (1)

Plaintiffs Third Cause of Action Should be Dismissed Because the Festival Laws are Facially Valid.

9
10 11 12 13 14 15 16 17

Facial constitutional challenges come in two varieties: (1) when a plaintiff asserts that an ordinance is unconstitutionally vague or impernzissibly restricts protected activity, or (2) when an
individual whose own speech or expressive conduct may validly be prohibited or sanctioned is

permitted to challenge a statute on its face because it also threatens others not before the court.
See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033-1034(9th Cir. Cal. 2006). Plaintiffs third cause of action is without merit because the Festival Laws are facially valid. Despite Plaintiffs allegations to the contrary, the Festival Laws are not directed toward speech and expressive conduct under the First Amendment, and they are not unconstitutionally vague.

18
19 20 21
9

(a)

The Festival Laws are Not Directed Toward Speech and Expressive Conduct.

The First Amendment of the United States Constitution prohibits laws abridging the

freedom of speech. U.S. Const. Amend. I. In the case at bar, the Festival Laws are not 4
subjected to First Amendment scrutiny because they are not directed toward protected speech

23 24
25

and/or expressive conduct. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 709 (1986). See also
Comm. for Reasonable Regulation of Lake Tahoe v. Tahoe Regl Planning Agency, 311 F. Supp. 2d 972, 1004 (D. Nev. 2004) (recognizing that facial freedom-of-expression challenges are
entertained only when the statute at issue sought to regulate spoken words or patently expressive

26 27
flLNDAL.ARMSfl(ONG, )ELI. BuNwu

28

The First Amendment is made applicable to the States by the Fourteenth Amendment. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 709 (1986).
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or communicative conduct). The Festivals Laws which have been enacted by the Nevada legislature (NRS 244.354244.3548) clearly do not regulate conduct or otherwise interfere with conduct which is protected by the First Amendment. See Exhibit E to Plaintiffs Complaint. NRS 244.354 merely requires that the board of county commissioners adopt an ordinance regulating and licensing outdoor assemblies. NRS 244.3545 sets forth various conditions which may be imposed by a county with respect to the issuance of a county permit, none of which have anything to do with activity

protected by the First Amendment. NRS 244.3545 specifically provides as follows: Conditions which may be imposed. The conditions which may be imposed by the board, as provided in NRS 244.354, for the protection of the health, safety and property of local residents and persons attending such assemblies may include the following:
1. A minimum number of law enforcement officers employed at the licensees expense. 2. Adequate drinking water. 3. Adequate food supplies. 5. Adequate toilet facilities. 6. Adequate medical facilities, including doctors and supplies. 7. A minimum amount of parking spaces for vehicles. 8. Adequate camping facilities. 9. Indemnity or performance bonds. 10. Adequate fire protection at the licensees expense. 11. Financial statements. 12. A communication system. 13. Other conditions determined by the board to be necessary to protect the health, welfare, and property of local residents and persons attending the assembly. (Emphasis added). The provisions of NRS 244.3548 describe conduct which is unlawful. See Exhibit E to Plaintiffs Motion. A review of Nevadas festival statute reveals that the provisions contained therein are content-neutral and do not otherwise preclude activity which is protected by the First Amendment. This being so, the First Amendment is not implicated in this case. It is obvious that the States intent in enacting the festival ordinance was to preserve the character of the community through its exercise of police power. Because the statute is not directed at speech and/or expressive conduct and was enacted pursuant to the States police powers, Nevadas festival ordinance is valid on its face. See Arcara, supra.

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17 18 19 20 21 22 23 24 25 26 27 28
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Without any factual support whatsoever, Plaintiff also alleges that Pershing Countys revised festival ordinance is directed toward speech and expressive conduct that is protected by the First Amendment. See Plaintiffs Complaint, 194. Said allegations should be disregarded by this Court because the language contained in the revised ordinance proves just the opposite. Like Nevadas festival statute, Pershing Countys revised festival ordinance is not subject to scrutiny under the First Amendment because it does not attempt to regulate or otherwise infringe upon conduct which is protected by the First Amendment. See Exhibit M to Plaintiffs Complaint. As discussed previously, Pershing Countys revised festival ordinance was enacted pursuant to NRS 244.354 and much of the language contained therein was taken from Nevadas festival statute. There are no provisions in the revised ordinance which regulate speech and/or expressive conduct. See Exhibit M to Plaintiffs Complaint. The Court should consider Pershing Countys own view of its ordinance in determining whether it is facially valid. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1035 (9th Cir. 2006) (holding that in considering a facial challenge to an ordinance, it is appropriate to consider a municipalitys authoritative interpretation of its guidelines and ordinances); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (stating that in evaluating respondents facial challenge, the court must consider the countys authoritative constructions of the ordinance, including its own implementation and interpretation of it). It is important to point out that the ordinance itself contains several provisions which expressly state that the ordinance is not intended to infringe upon or otherwise affect rights

guaranteed by the First Amendment. For example, the revised ordinance specifically states that
[n]o application shall be denied on any improper basis under the Nevada and/or United States Constitutions, including the content of any speech that may occur at an assembly. Id. at 30-31 (Pershing County, NV Code 5.16.140(G)). Section 5.16.160 of the revised ordinance provides that a license cannot be revoked on an improper basis under the Nevada and/or United States Constitutions, including the content of any speech that may occur at an assembly. Id. at 31. As the Court can see, Plaintiffs First Amendment claim must fail because the legislation at issue is not even directed at conduct which is protected by the First Amendment. See Hoffman Estates v.

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1 2 3 4 5 6 7 8 9

Flipside, Hoffman Estates, 455 U.S. 489,495 (1982). (b)

The Festival Laws Contain Sufficient Standards.

In its third cause of action, Plaintiff alleges that the Festival Laws are invalid because they are unconstitutionally vague. See Plaintiffs Complaint, 94. A statute or ordinance can be rendered void for vagueness if it lacks standards against which courts can measure the licensors actions. See S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1135 (9th Cir. 2004). To succeed on such a challenge a plaintiff is required to demonstrate that the law is impermissibly vague in all of its applications. Hoffman Estates, 455 U.S. at 497. Rules that grant licensing officials undue discretion are unconstitutional. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992). However, an ordinance that imposes a permit requirement in order to allow expressive conduct is permissible if it includes narrow, objective and defmite standards to guide the licensing authority. Id. See also Shuttleworth v. City ofBirmingham, 394 U.S. 147, 151 (1969). In the case at bar, the Festival Laws are valid on their face because they contain narrow, objective, and defmite standards to guide the Board of County Commissioners in issuing outdoor assembly licenses. The Festival Laws describe what information must be included in an application for a license (NRS 244.3543 and Pershing County, NV Code

io
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
flDAL,AIMONG,

5.16.030-5.16.040), * 5.16.030 and

they set forth the time periods within which county officials will consider an application and reach a final licensing decision (NRS 244.3544 and Pershing County, NV Code

5.16.050), they describe the various conditions that the County may impose in granting a license (NRS 244.3545 and Pershing County, NV Code

* 5.16.060, 5.16.080), they set forth in detail

the grounds upon which a license may be denied or revoked (NRS 244.3546-244.3547 and Pershing County, NV Code

* 5.16.140 and 5.16.160), they specify the necessary fees which are

required to obtain a license (Pershing County, NV Code 5.16.010, 5.16.060), and there is a process by which applicants can appeal decisions by the County (Pershing County, NV Code 5.16.2 10). See Exhibits D and M to Plaintiffs Complaint. Because the standards for approving an outdoor assembly license are such that Pershing County officials do not have unfettered discretion in approving the same, Plaintiffs third cause of action is wholly without merit.

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Plaintiffs Fourth Cause of Action Should he Dismissed Because it Cannot Demonstrate that the Festival Laws are Unconstitutional As Applied.

Plaintiff cannot prevail on its Fourth Cause of Action because the Festival laws are not unconstitutional as applied to Plaintiff. As set forth above, the Festival L.aw are not directed toward speech and/or expressive conduct which is protected by the First Amendment. Moreover, the Festival Laws do not discriminate against or single out Plaintiff and the Burning Man Event because all of the provisions contained in the Festival Laws apply equally to anyone who has a desire to organize an outdoor gathering which consists of more than 1,000 people. Additionally, the Festival Laws do not contain any content-based restrictions. Any and all conduct which is prohibited by the Festival Laws only pertains to actions that violate criminal statutes and ordinances. To the extent that Plaintiff is suggesting that the Festival Laws are unconstitutional because they prohibit illegal conduct from occurring at the Event is simply without merit and should be rejected by the Court. It is well established that the protections afforded by the First Amendment are not absolute or limitless. For example, courts have long permitted the government to regulate or proscribe conduct which is lewd, obscene, and profane. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72(1942). Speech or expressive conduct that is directed to inciting or producing inuninent lawless action and [that] is likely to incite or produce such action, also is subject to regulation. Brandenburg v. Ohio, 395 U.S. 444,447, 89 S. Ct. 1827, 23 L. Ed. 2d 430(1969). See also 2025 Highway, LL C. v. Bibb County, 377 F. Supp. 2d 1310, 1356 (M.D. Ga. 2005) (holding that the right to free expression under the First Amendment may not be used as a shield against prosecution for blatantly unlawful conduct). The fact that Pershing Countys festival ordinance requires the payment of fees by an applicant in order defray costs that the County incurs as a result of events such as Burning Man does not render the ordinance unconstitutional. Governments are permitted to impose nominal fees to defray the costs of legitimate regulations, even if such a fee creates a burden of free speech, so long as the fee is reasonably related to the expenses incident to the administration of the ordinance and to the maintenance of public safety. See Cox v. New Hampshire, 312 U.S. 569, 577 (1941) and Murdock v. Pennsylvania, 319 U.S. 105, 113-14(1943). See also Mainstream

EI,INGK1

5 S. Mrr.. Blvd. #233

t,.o. 95O9 773) 7862S2

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Marketing Sens., Inc. v. Federat Trade Commn, 358 F.3d 1228, 1247 (holding that fees may be

2
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
INORNflAL, ARMSTRoNG,
SLK. BALKENIUSI,

imposed to defray both administrative expenses (such as processing and licensing costs) and the
cost of enforcing the regulations). While there has been some discussion regarding whether fees imposed to obtain a license or permit must be nominal, courts in various jurisdictions have upheld fees which are more than nominal so long as the permit fee is reasonably related to the expense incident to the administration of the statute and to the maintenance of public order in the

matter licensed. See Northeast Ohio Coalition for the Homeless v. City of Cleveland, 105 F.3d
1107, 1110(6th Cir. 1997); American Target Advertising, Inc. v. Giani, 199 F.3d 1107, 1110(10 th Cir. 2000); Natl Awareness Found. v. Abra,ns, 50 F.3d 1159, 1165 (2d Cir. 1995); and Center for Auto Safety, Inc. v. Athey, 37 F.3d 139, 145(4th Cir. 1994). In the case at bar, the fee requirements set forth in Pershing Countys revised festival

ordinance are constitutionally valid because they serve to defray the costs of legitimate
regulations and are reasonably related to the expenses incident to the administration of the ordinance and to the maintenance of public safety. See Exhibit M to Plaintiffs Complaint, pp. 216. Despite Plaintiffs allegations to the contrary, the fees that are set forth in the revised festival

ordinance are not arbitrary or excessive. Exhibit M to Plaintiffs Complaint contains a rather
detailed discussion concerning the costs that Pershing County incurs when a gathering consisting of more than 1,000 people takes place within the County. Id. It is estimated that Pershing County incurs costs amounting to at least $2.57 per person per day in providing law enforcement related services at these assemblies. Id. at 6. The revised festival ordinance requires that applicants be charged a fee based upon budgets submitted by the various county offices which will incur additional workload and costs from the assembly. The Commissioners shall examine the proposed budgets and make any changes that are reasonable and are necessary to ensure that the budgets cover the necessary expenses incurred as a result of the assembly. See Exhibit N (Ordinance No. 293, amending Pershing County, NV Code 5.16.060). The fee is anything but excessive. It is clear that the revised festival ordinance contains a fee provision for the sole purpose of defraying those costs that the County incurs in maintaining public safety.

28
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isNuiR
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More importantly, the fees set forth in the revised festival ordinance are not content-based

and do not impermissibly restrict constitutionally protected speech or conduct. The fee applies to all applicants who intend to hold an outdoor assembly of more than 1,000 people, regardless of
the nature of the event or the type of activities which will occur during the event. Plaintiff fails to allege specific facts in its Complaint that demonstrate how the fee requirement in the statute

impinges upon any rights which are guaranteed by the First Amendment. As previously
discussed, fees such as the one that exists in the revised festival ordinance do not violate the First Amendment. See Cox, 312 U.S. at 577. This being so, Plaintiffs fourth cause of action is not viable, and should therefore be dismissed with prejudice.

F.

Plaintiffs Fifth Cause of Action Should be Dismissed Because it Fails to State a Viable aaim for a Violation of Procedural Due Process Under the Fourteenth Amendment.
In its fifth cause of action, Plaintiff alleges that its procedural due process rights were

violated when the Sixth Judicial District Court determined that the 2005 and 2011 Agreements between Plaintiff and the Pershing County Board of Commissioners were void in its Judgment Granting Petition for Writ of Certiorari, Mandamus, and/or Prohibition, which was entered on May 24, 2012. See Plaintiffs Complaint,

fl 103-107. Plaintiffs claim fails as a matter of law

because it was never deprived of a constitutionally protected property interest. The Fourteenth Amendment of the United States Constitution provides that a person shall not be deprived of life, liberty, or property, without due process of law. See U.S. Const. Amend. XIV 1. See also Board ofRegents v. Roth, 408 U.S. 564, 569 (1972). Procedural due process is not intended to protect individuals from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Carey v. Piphus, 435 U.S. 247, 259 (1978). As such, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided and whether it was constitutionally adequate. Zinermon v. Burch, 494 U.S. 113, 126(1990).

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A procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections. Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971,982 (9th Cir. 1998). Before reaching the question of the propriety of the procedures employed by the state actor, a court must first determine whether a plaintiff has a protected property or liberty interest. See Kentucky Dept of Corrections v. Thompson, 490 U.S. 454,460(1989). Property interests protected by the Due Process Clause of the Fourteenth Amendment extend beyond the ownership of real estate, chattels, or money. Roth, 408 U.S. at 571-72. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He or she must have more than a unilateral expectation of it. He or she must, instead, have a legitimate claim of entitlement to it. Id. at 577. Property interests are not created by the United States Constitution. Id. Rather, they are created by existing rules or understandings that stem from independent sources such as state law. Id. In the instant matter, Plaintiffs right to procedural due process was not violated because it does not possess a protected property or liberty interest. Plaintiffs procedural due process claim is based upon the allegation that it has been deprived of the contractual property rights which are derived from the agreements that it entered into with Pershing County in 2005 and 2011. The 2005 and 2011 agreement exempted Plaintiff from complying with the requirements set forth in Pershing Countys festival ordinance in exchange for yearly payments to the County. See Plaintiffs Complaint,

fl 40-41. Unfortunately for Plaintiff, any alleged property interest

which was conferred by those agreement cannot form the basis of a procedural due process claim because those agreements are void and unenforceable. While the County was a party to the 2005 and 2011 agreements and initially believed that entering into the same was appropriate, upon further reflection of the terms of those agreements and the various legal issues pertaining to the same, the County now recognizes that the agreements are void and unenforceable for the reasons discussed below. The 2005 and 2011 agreements improperly granted Plaintiff with rights which are in direct contravention to Nevada law. It is well established that contracts made in contravention of

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NO NDAL,ARM)ITIIONG, WIK. BLKNuI 5 S. MC Ivd. 2OO o. N,v.d. *93O 775) 7*6.2*52

the law cannot enforced. See Vincent v. Santa Cruz, 647 P.2d 379, 381 (Nev. 1982) and Rivero

v. Rivero, 216 P.3d 213, 226 (Nev. 2009). Generally, contracts made in contravention of the law
do not create a right of action. Vincent, 647 P.2d at 381. It is axiomatic that a valid contract cannot be contrary to statute. See Doe v. Ronan, 937 N.E. 2d 556 (Ohio 2010). Courts have held that contracts which contravene statutes violate public policy. See Mendoza v. Rivera-Chavez, 999 P.2d 29,31 (Wash. 2000); KR. Swerdfeger Constr., Inc. v. BL of Regents, 142 P.3d 962 (N.M. Ct. App. 2006); and Peeples v. Detroit, 297 N.W.2d 839, 846 (Mich. Ct. App. 1980). Any agreement which is predicated upon a violation of an ordinance is illegal and therefore unenforceable. See Rice v. James, 844 S.W. 2d 64,69 (Mo. App. 1992). Nevadas festival law made it mandatory for counties to enact and abide by an ordinance regulating outdoor assemblies. See NRS 244.354. NRS 244.354 specifically provides that the board of county commissioners of each county shall adopt an ordinance regulating and licensing outdoor assemblies. See Exhibit I) to Plaintiffs Complaint (emphasis added). See 5

also NRS 244.3544 (providing that the board of county commissioners shall hold a public
hearing and determine whether it will grant, deny, or grant with conditions any outdoor festival license). Not only did the Nevada Legislature require that counties enact an ordinance which regulates outdoor assemblies, but it mandated that all individuals or entities who intend to hold an outdoor assembly consisting of more than 1,000 people apply for and obtain a license from the county where the event is held. See NRS 244.3542. NRS 244.3542 provides as follows Every person who permits, maintains, promotes, conducts, advertises, operates, undertakes, organizes manages, sells or gives away tickets to an actual or reasonably anticipated assembly of 1,000 or more individuals shall obtain a license from the board of county commissioners of the county in which such assembly is proposed (emphasis added).
. . .

See Exhibit D to Plaintiffs Complaint

28

Use of the word shall is mandatory unless the statute demands a different construction to carry out the clear intent of the Nevada Legislature. See State ofNevada Employees Ass n v. Dames, 824 P.2d 276, 278 (1992).

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WIK. BALKENMJSH EIszNR N.v.d. 9O9 775) 76-282

While Pershing County has the right to enter into contracts, it does not have the right to abrogate duties imposed upon it by the legislature. It is well established that a countys powers are limited to those which are granted to it by the legislature. All acts beyond the scope of the

powers granted [by the legislature to the county] are void. Ronnow v. Las Vegas, 65 P.2d 133,
136 (Nev. 1937). The express purpose of the 2005 and 2011 agreements was to exempt Plaintiff from complying with the licensing requirements which are mandated by Nevadas festival law

and Pershing Countys festival ordinance. By entering into the 2005 and 2011 Agreements, the
Pershing County Board of Commissioners exceeded their authority. Where a municipal governing body enters into a contract which is beyond the scope of the municipalitys powers, such an attempt to contract is termed ultra vires, and the contract is wholly void. Professional Fire Fighters of Woleboro, JAFF Local 3708 v. Town of Wolfeboro, 48 A.3d 900,906 (N.H. 2012). It has also been held that a municipality cannot contractually deprive itself of its legislative or police powers. See Vermont Dept of Pub. Serv. V. Massachusetts Mun. Wholesale Elec. Co., 558 A.2d 215, 222 (Vt. 1988); Hartnet v. Austin, 93 So. 2d 86, 89 (Ha. 1956). The fact that Pershing County exceeded its authority in contracting away its statutory duties and entered into agreements which are in direct conflict with Nevada statutes, renders the 2005 and 2011 contracts void and unenforceable. See Rivero, 216 P.3d at 226. Because the agreements that Plaintiff entered into with Pershing County are void, Plaintiff does not have a property interest to support its procedural due process claim. This being so, Plaintiffs fifth cause of action is not viable, and should therefore be dismissed with prejudice. See Roth, 408 U.S. at 578-79. The Court Should Not Exercise Jurisdiction Over Plaintiffs Supplemental State Law Claims. 28 U.S.C. 1367(a) allows the federal court to exercise supplemental jurisdiction over a plaintiffs claims arising out of state law where said claims form part of the same case or controversy as do the federal questions at issue. The Court may decline, however, to exercise supplemental jurisdiction over state law claims if the court determines that the federal claims warrant dismissal. See 28 U.S.C. 1367(c)(3). The exercise of supplemental, or pendent
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S. I,d.

jurisdiction, is a doctrine of discretion, not of plaintiffs right. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139(1966). If the federal claims are

dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well. Id. Issues of judicial economy, convenience and fairness to

litigants are relevant when considering the exercise of jurisdiction under 1367(a).
Should the Court find in favor of Defendants in regard to Plaintiffs claims arising under federal law, Plaintiffs state law claim should be dismissed as well. In the event the Court exercises supplemental jurisdiction over Plaintiffs state law claim, independent grounds for dismissal exist.

H.

Plaintiffs Sixth Cause of Action Which Is Premised Upon Breach of Contract Under Nevada Law Should be Dismissed Because No Valid Contract Exists Between Plaintiff and Pershing County.
Plaintiff asserts a state law claim against Defendants for breach of contract in violation of

Nevada law. See Plaintiffs Complaint,

fl 108-111. More specifically, Plaintiff alleges that

Pershing County breached the 2005 and 2011 agreements by enforcing the revised festival ordinance against Plaintiff. Id. at 111. In order to prevail on a claim for breach of contract under Nevada law, a plaintiff is required to prove the following elements: (1) the existence of a valid contract, (2) the defendant breaches his obligations under the contract, and (3) damages are caused by the breach. See Saini v. Intl Game Tech., 434 F. Supp. 2d 913, 920 (D. Nev. 2006). In the case of Bernard v. Rockhill Dev. Co., the Nevada Supreme Court recognized that a breach of contract occurs when there is a material failure of performance of a duty arising under or imposed by agreement. 103 Nev. 132, 135, 734 P.2d 1238, 1240 (1987) (quoting Malone v. Univ. of Kansas Med. Ctr., 220 Kan. 371, 552 P.2d 885, 888 (1976)). As previously discussed, the agreements that Pershing County entered into with Plaintiff

are void and unenforceable. Because no valid contract exists between Plaintiff and Pershing
County, Plaintiff fails to state a claim for breach of contract. Accordingly, Plaintiffs sixth cause of action should be dismissed with prejudice.

28

9509 775)796-2092

26

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1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
rH0RF4OAL, ARM5TRONG, )U BALKENRUSH

IV. CONCLUSION
Based iipon the foregoing, Plaintiff fails to assert viable claims which may give rise to liability against Defendants. Because Plaintiff fails to state a claim upon which relief may be

granted, Plaintiffs Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P.
12(bx6). DATED this 9th day of October, 2012. THORNDAL, ARMSTRONG, DELK, BALKENBUSH & EISINGER

By: Is/Brent T. Kolvet Brent T. Kolvet, Esq. State Bar No. 1597 6590 S. McCarran Blvd., Suite B Reno, Nevada 89509 (775)786-2882
Attorneys for Defendants, Attorney for Defendants, Pershing County Board of Commissioners, Pat frwin, Carol Shank, Darin Bloyed, and Richard Machado

Ic EISINGER
sso Rl,d. sass ).o. N,v.d. 59509 775) 786-2882

s.

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1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 DATED this
th 9

CERTIFICATE OF SERVICE
Pursuant to FRCP 5(b), 1 certify that I am an employee of Thomdal, Armstrong, Delk, Balkenbush & Eisinger, and that on this date, I filed the foregoing DEFENDANTS MOTION TO
DisMiss PLAINTIFFS COMPLAINT with the United States District Courts CM!ECF system,

which will serve the following parties electronically:

Attorney Name Tamara Reid, Esq. Nevada State Bar #9840 Holland & Hart LLP 5441 Kletzke Len., Second Floor
Reno, NV 8961

Telephone/Fax/EmaIl
T&

Party Represented PlaIntiff

(775) 327-3000 Fax: (775) 7886179 EmaIP treld*ioliandharLcom

Terry Grcee Esq. 9 Adam Beisky, Esq. Gram. Bel.ky Alonao l.LP One Sansome Street, SuIte 3670 San Francisco, CA 9404

Tel:

(415) 5440200

PlaintIff

Fax:

(415) 544.0201

Email: terrv@b.-Iew.com

day of October, 2012.

16
17

Is/RachelL Atchlev An employee of Thorndal, Armstrong, Delk, Balkenbush & Eisinger

18
19 20 21 22 23 24 25 26 27
HOINDAL, ARMSrRONG, )1Lk. 8ALKEN#US14

28
-

FISING))E 590 S. Bh,L #2)5) cx #9309 7)) 756-2582

28

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