Burning Man Lawsuit Response 2

Case 3:12-cv-00435-RCJ-VPC Document 16
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Jim C. Shirley Pershing County District Attorney Pershing County Courthouse 400 Main Street P.O. Box 934 Lovelock, Nevada 89419 (775) 273 2613 Facsimile (775) 273 7058 Email JShirley@pershingcounty.net UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) ) ) ) Board of Pershing County Commissioners, ) and ) Pat Irwin, in his official capacity ) as Chairman, Board of Pershing County ) Commissioners, ) ) and Carol Shank, in her official capacity as Vice- ) ) Chairman, Board of Pershing County ) Commissioners, ) and ) ) Darin Bloyed, in his official capacity as ) Pershing County Commissioner, ) and ) Jim C. Shirley, in his official capacity ) as District Attorney of Pershing County, State ) ) of Nevada ) and ) Richard Machado, in his official capacity ) as Sheriff of Pershing County, State of ) ) Nevada, ) ) Defendants. ) Black Rock City, LLC, Plaintiff, v.
Case No. 3:12-cv-00435
DEFENDANT JIM SHIRLEYS MOTION TO DISMISS THE PLAINTIFFS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
COMES NOW Defendant, Jim C. Shirley, Esq., In His Official Capacity as District Attorney, and does hereby, pursuant Fed. R. Civ. P. 12(b)(6), move to dismiss with prejudice the Plaintiffs Complaint For Declaratory And Injunctive Relief And Damages, filed on August 16, i|Page Defendant Shirleys Motion to Dismiss
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2012 as Doc. No. 1 in the above-entitled action. The grounds for this Motion are that the Complaint fails to state a claim(s) upon which relief can be granted. This Motion is based upon the points and authorities contained herein, together with the Complaint and its attachments and the Motion to Dismiss filed by the other defendants to the above-entitled action. Dated this 9th day of October, 2012.
Jim C. Shirley Pershing County District Attorney
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Defendant Shirleys Motion to Dismiss
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 28 I. Introduction
POINTS AND AUTHORITIES
The above-entitled matter came before the Court due to an alleged dispute between Plaintiff, Black Rock City, LLC (Black Rock City), and Pershing County Elected Officials in relation to the application of Nevada Revised Statutes (NRS) 244.354 et. seq. in relation to outdoor festivals of more than 1000 people. Under NRS 244.354, Pershing County was required to enact an ordinance regulating outdoor festivals (defined essentially as an outdoor assembly of more than 1000 people). Under NRS 244.3542 and 244.3543, a person or entity, such as Black Rock City, is required to submit a written application and obtain license before selling ticket to any concerning Pershing Countys enactment and enforcement of a permitting process which affects an event known as Burning Man. Under NRS 244.3544, Pershing County is required, as part of its ordinance, to hold a hearing and grant, deny, or grant with conditions an Outdoor Festival License. Plaintiff has filed the instant declaratory relief action against five of Pershing Countys Elected Officials in their official capacities and against the Board of Pershing County Commissioners. The central thrust of the action challenges the application of NRS 244.354 et. seq. and the Pershing County Festival Ordinance (enacted pursuant to said statute) to the Black Rock City in relation to the annual Burning Man Event. Plaintiff asserts six causes of action against the named Defendants: (1) First and Second Causes of Action allege that declaratory relief should be granted based upon allegations of federal preemption; (2) Third and Fourth Causes of Action allege that declaratory relief should be granted based upon allegations of the violation of the First Amendment; (3) Fifth Cause of Action alleges that the Court should find a due process violation based upon a property interest in a 2005 and/or 2011 contract; and (4) Sixth Causes of Action allege that the Court should find a breach of the 2005 and/or 2011 contract. As set forth below, each and every claim asserted in the Complaint lack merit as a matter of law and should be denied. Even assuming that the allegations set forth in the Defendant Shirleys Motion to Dismiss
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Complaint were to be true and the facts were to be construed in favor of the Plaintiff, each and every Cause of Action, together with the Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) for failure to a state claim(s) upon which relief may be granted. A. Standard: Rule 12(b)(6) Motion to Dismiss: A dismissal for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is limited to the contents of the complaint and the documents attached to the complaint.1 A complaint should be dismissed under Rule 12(b)(6) if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.2 For purposes of the Rule 12(b)(6) Motion to Dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party.3 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory.4 B. Plaintiffs Burden In Drafting Complaint: The Plaintiff has the burden
of production to come forward with facts in their Complaint establishing a prima facie case.5 Plaintiff may not rely on mulled allegations, legal conclusions masquerading as factual conclusions, or unwarranted deductions to defeat a motion to dismiss.6 The complaint must be sufficiently pled factually such that it state[s] a claim to relief that is plausible on its face.7 Facial plausibility occurs when the facts pled by the plaintiff
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003); Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984). 2 Conley v. Gibson, 355 U.S. 41, 45-46, (1957). 3 Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056, (1986). 4 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988) (citations omitted). 5 St. Marys Honor Center v. Hicks, 509 U.S. 502 (1993). 6 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007); see also Bright v. Westmoreland County, 380 F.3d 729, 735 (3d Cir. 2004) (citations omitted). 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (Internal Quotations omitted). 2|Page Defendant Shirleys Motion to Dismiss
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allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.8 II. STATEMENT OF THE FACTS These facts must be extracted from the Complaint in this matter. Defendant Shirley specifically reserves and would deny many of the allegations set forth by the Plaintiff in the Complaint and reserves the right to file an answer to the Complaint if the Court denies this Motion in part or whole. HOWEVER, pursuant to a Rule 12(b)(6) analysis, the Court assumes that the facts in the Complaint and the documents attached thereto are true and accurate and granting the Motion rests on a finding that the Complaint fails to state a claim upon which relief can be granted. Defendant Shirley would incorporate and adopt by reference the facts set forth in the Motion to Dismiss filed by the Board of Pershing County Commissioners, Pat Irwin, Carol Shank, Darin Bloyed, and Richard Machado. Any additional facts pertaining to the Causes of Action herein will be referenced specifically in the Argument Section. III. ARGUMENT A. The Claims Contained In The Sixth Cause of Action Must Be Dismissed Because The 2005 and 2011 Contracts Are Illegal
Under a state law claim, Plaintiff alleges in its Sixth Cause of Action that Defendant Board of Pershing County Commissioners (Board) is in breach of a 2005 contract and a 2011 contract with the Board because the Board has applied the festival ordinance to Black Rock City. (Complaint, 108-111). In order to sustain its claim, Black Rock City must establish: (1) the existence of a valid contract; (2) a breach by the Board; and (3) damages resulting from the Board's breach.9 The three requirements are read conjunctively and require proof of each. This claim fails as a matter of law because the contracts in question are illegal, ultra vires and are void ab initio. As alleged by
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Id. at 678. Keife v. Metropolitan Life Ins. Co., 797 F.Supp.2d 1072, 1076 (D.Nev., 2011). (citations omitted). 3|Page Defendant Shirleys Motion to Dismiss
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Black Rock City, the contracts attempt to exempt Black Rock City from state law requirements and attempt to bind Pershing County in the future exercise of police powers.
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1.
Illegal Contracts
Parties are free to contract, and the courts will enforce their contracts if they are not unconscionable, illegal, or in violation of public policy.10 Contracts made in contravention of the law do not create a right of action.11 It is widely recognize that contracts entered into by municipalities, such as Pershing County, have certain restrictions. The United States Supreme Court stated that the legislative power vested in municipal bodies is something which cannot be bartered away in such manner as to disable them from the performance of their public functions.12 2. 2005 and 2011 Contracts Are Ultra Vires, Illegal and Void
It is well settled that a municipality cannot contractually deprive itself of its police, legislative or governmental powers nor can it contractually restrict the future exercise of such authority.13 If a public corporation enters into a contract that barters away or otherwise restricts the exercise of its legislative or police powers, then the
Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009) citing to D.R. Horton, Inc. v. Green, 120 Nev. 549, 558, 96 P.3d 1159, 1165 (2004) (citing unconscionability as a limitation on enforceability of a contract); NAD, Inc. v. Dist. Ct., 115 Nev. 71, 77, 976 P.2d 994, 997 (1999) (stating parties are free to contract in any lawful matter); Miller v. A & R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981) (discussing public policy as a limitation on enforceability of a contract). 11 Vincent v. Santa Cruz, 98 Nev. 338, 341, 647 P.2d 379, 381 (1982) citing to Martinez v. Johnson, 61 Nev. 125, 119 P.2d 880 (1941). 12 Wabash Railroad v. City of Defiance, 167 U.S. 88, 100 (1897). 13 10 E. McQuillin, The Law of Municipal Corporations 29.07, at 277 (3d ed.1999); Vermont Dept. of Public Service v. Massachusetts Mun. Wholesale Elec. Co., 558 A.2d 215, 222 (Vt.,1988). ([A] public corporation may not enter into a contract that purports to restrict the future exercise of its legislative authority); Citing Byrd v. Martin, Hopkins, Lemon & Carter, P.C., 564 F.Supp. 1425, 1428 (W.D.Va.1983), aff'd, 740 F.2d 961 (4th Cir.1984); Illinois Power & Light Corp. v. City of Centralia, 11 F.Supp. 874, 885 (E.D.Ill.1935), rev'd on other grounds, 89 F.2d 985 (7th Cir.1937); Barton v. Atkinson, 187 S.E.2d 835, 843 (1972); and City of Louisville v. Fiscal Court of Jefferson County, 623 S.W.2d 219, 224 (Ky.1981); cf. Pierce Oil Corp. v. City of Hope, 248 U.S. 498, 501, (1919) (where public welfare is involved, a contract not to legislate would have no effect). 5|Page Defendant Shirleys Motion to Dismiss
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contract is ultra vires and void ab initio.14 These principles have been uniformly recognized and upheld. A political subdivision of state government simply cannot contract away future use of its police powers.15 Such a contract is unenforceable because it is illegal and void ab initio. Municipalities simply cannot barter away their police powers.16 A municipality, like Pershing County, does not have the authority to enter into such a contract, which effectively contracts away the exercise of its police powers.17 As a political subdivision of state government, Pershing County lacked the authority to enter into the 2005 or 2011 Contracts. On the face of the complaint, Black Rock City clearly alleges that the intent and effect of the contracts was to bind Pershing Countys ability to exercise its police powers and legislative authority. Black Rock City alleges that the County agreed that the Festival Ordinance would not apply to the Burning Man Event and that the County would amend its Festival Ordinance to exempt Burning Man from its scope. (Complaint, 40). To further understand the problem created by the County and Black Rock City, it must be understood that the County is a political subdivision of the State of Nevada. As
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Byrd, 564 F.Supp. at 1428. Florida case of P.C.B. Partnership v. City of Largo, 549 So.2d 738 (Fla.Dist.Ct.App.1989). (Contract suit, [t]he City does not have the authority to enter such a contract, which effectively contracts away the exercise of its police powers.); City of Belleview v. Belleview Fire Fighters, Inc., 367 So.2d 1086, 1088 (Fla.App., 1979); Hartnett v. Austin, 93 So.2d 86, 89 (Fla. 1956); Snow v. Van Dam, 197 N.E. 224 (Mass. 1935); V. F. Zahodiakin Eng. Corp. v. Zoning Board of Adjust., 86 A.2d 127 (N.J., 1952); Houston Petroleum Co. v. Automotive Prod. C. Ass'n, 87 A.2d 319 (N.J. 1952); Marco Development Corp. v. City of Cedar Falls, 473 N.W.2d 41 43-44, (Iowa,1991); Oakes Constr. Co. v. City of Iowa City, 304 N.W.2d 797, 808 (Iowa 1981); 3 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning 29A.03[1][b], [f], at 27, 3334 (1990); 16 Vermont Dep't of Pub. Serv. v. Massachusetts Mun. Wholesale Elec. Co., 558 A.2d 215, 222 (Ver. 1988) (municipality's statutory authority to exercise its police powers is in nature of public trust and thus cannot be bartered away). 17 P.C.B. Partnership v. City of Largo, 549 So.2d 738, 741 (Fla.App. 1989) citing to Hartnett v. Austin, 93 So.2d 86 (Fla.1956); City of Belleview v. Belleview Fire Fighters, Inc., 367 So.2d 1086 (Fla. 1st DCA 1979); City of Safety Harbor v. City of Clearwater, 330 So.2d 840 (Fla. 2d DCA 1976).
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such, its powers are derivative from the powers given by the State of Nevada. All acts beyond the scope of the powers granted [by the legislature to the county] are void.18 Essentially, the contract permitted Burning Man to be exempt from the County Festival Ordinance and to not comply with state law (something the county has no authority to do19), while simultaneously binding Pershing County to never-ending moratorium on its police powers and legislative discretion while it violated state law (see supra). Use of word shall is mandatory unless the statute demands a different construction to carry out the clear intent of the Nevada legislature.20 The following are mandatory provisions of NRS 244.354 et seq.: NRS 244.354 (indicating the board of county commissioners of each county shall adopt an ordinance regulating outdoor assemblies); NRS 244.3542 (indicating that a person who sells tickets or operates an outdoor assembly with more than 1000 individuals shall obtain a license from the board of county commissioners of the county in which such assembly is proposed); NRS 244.3543 (providing that an application for a license shall be in writing); and 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). The Contract attempted to exempt Pershing County from its statutory duties. It also attempted to bind Pershing County from exercising its police powers under Nevada Revised Statutes 244.354 et. seq. Finally, it attempted to bind Pershing County to not use its discretion in accordance with NRS 244.354 et. seq. While attempting to Bind Pershing County certainly made the contract ultra vires and of no legal effect,21 it also
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Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133, 136 (1937). Fine Airport Parking, Inc. v. City of Tulsa, 71 P.3d 5, 13 (Ok. 2003) (municipality cannot exempt its conduct from mandatory provisions of a general statute); City of Westminster v. District Court In and For Adams County, 447 P.2d 537, 539 (Colo. 1968) (Even a court does not have the jurisdiction to order a municipality to disobey a valid and applicable mandatory statute). 20 State of Nevada Employees Assn, Inc. v. Daines, 108 Nev. 15, 19, 824 P.2d 276 (1992). 21 Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C.App. 249, 262 S.E.2d 705 (1980); Vermont Dep't of Pub. Serv. v. Massachusetts Mun. Wholesale Elec. Co., 151 Vt. 73, 8182, 558 A.2d 215, 222 (1988) (municipality's statutory 7|Page Defendant Shirleys Motion to Dismiss
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exempted Black Rock City from state law requirements. Pershing County had no authority to exempt Black Rock City from the mandatory provisions of state law. It is goes without saying that no valid contract may be made which is contrary to statute.22 Sanctioning the contracting-away of a statutorily imposed duty is contrary to the public interest.23 An agreement providing for conduct which violates a statute is void based upon illegality of consideration.24 The general rule is that a contract which
violates a statute or public policy will not be enforced by the courts.25 One Court succinctly indicated why the contract that Black Rock City seeks to enforce should be unenforceable when it held: If we were to enforce this contract, we would be aiding and abetting the violation of the [the law]. It is a rule of general application that any bargain is illegal if its formation or performance is prohibited by statute, and it will not be enforced in the courts..the principle applicable to this case was aptly stated: If it clearly appears that a contract has as its direct object and purpose a violation of the Federal or state constitution, Federal or state statutes, some ordinance of a city or town, or some rule of the common law, courts will not lend their aid to its enforcement. 26 3. Dismissal Is Appropriate
authority to exercise its police powers is in nature of public trust and thus cannot be bartered away) 22 Doe v. Ronan, 937 N.E.2d 556, (Ohio 2010). 23 Stelluti v. Casapenn Enterprises, LLC, 1 A.3d 678 (N.J. 2010). 24 Rice v. James, 844 S.W.2d 64, 69 (Mo.App. 1992) citation omitted. 25 See, e.g., Wechsler v. Novak, 157 Fla. 703, 26 So.2d 884 (1946); Department of Motor Vehicles v. MercedesBenz of North America, Inc., 408 So.2d 627 (Fla. 2d DCA 1981) (on grounds of public policy, clauses in a contract which violate a statutory provision are nugatory and will not be given effect); Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th DCA 1971) (generally, an agreement which violates a statute or is contrary to public policy is illegal, void and unenforceable as between the parties). 26 Naseef v. Cord, Inc., 216 A.2d 413, 417-18 (N.J., 1966) citing to Samuel D. Wasserman, Inc. v. Klahre, 93 A.2d 628 (N.J.App., 1952); Lehigh Valley R. Co., v. United Lead Co., 133 A. 290 (N.J., 1926); Restatement, Contracts, 580 (1932); Zeitz v. Foley, 264 S.W.2d 267, 268 (Ky.Ct.App.1954) citing to Vick v. Patterson, 158 Cal.App.2d 414, 322 P.2d 548 (D.Ct.App.1958); Wechsler v. Novak, 157 Fla. 703, 26 So.2d 884, 887 (Sup.Ct.1946). 8|Page Defendant Shirleys Motion to Dismiss
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Based upon the foregoing, the contract is null and void and was so ab initio. Based upon Black Rocks own allegations (see 40), the contract was intended to restrict and obliterate Pershing Countys ability to exercise legislative powers and police powers, was intended to: (1) Require Pershing County to ignore its statutory duties under NRS 244.3544, 244.3545, 244.3546, 244.3547, and 244.3548; (2) Exempt Black Rock City from complying with NRS 244.3542, 244.3543; (3) Exempting Black Rock from complying with the other provisions relating to outdoor assemblies of Nevada Law as well as the County Ordinance that was mandated to be implemented pursuant to NRS 244.354. Such a contracts intent and purpose is illegal because it would contravene state law and would be against public policy. Such a contract is ultra vires because it requires the County to take action that outside their authority. Dismissal is appropriate because there are no factual circumstances under which Black Rock City can claim that the contract was valid. Therefore, it cannot prevail on its claim for breach of contract. Dismissal is appropriate under Rule 12(b)(6). B. The Fifth Cause Of Action Must Be Dismissed Because There Is No Protected Property Right Involved That Would Give Rise To A Due Process Claim
As it relates to the fifth cause of action, Plaintiff asserts that its procedural due process rights were violated when the Sixth Judicial District Court ordered, pursuant to a judgment on May 24, 2012, that the Board of Pershing County Commissioners comply with and honor their statutory duties. Complaint, 103-107. Boiled down to its essence, Black Rock City argues that it had a property right in the contractual provision which prohibited Pershing County in perpetuity from requiring Black Rock City to comply with NRS 244.354 et. seq. While Black Rock City clothes its claim as one resting on the due process clause and the judgment of the district court, the true issue is whether Black Rock City had a protected property interest in the illegal and void 2005 and 2011 contracts. Accordingly, lost in Black Rock Citys conspiratorial allegations and meanderings is a complete failure to address this core issue of a protected right. The fact that there is no claim as matter of law upon which relief can be granted because Black 9|Page Defendant Shirleys Motion to Dismiss
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Rock City never had a constitutionally protected property interest in the void and illegal 2005 and 2011 agreements. See Discussion supra. Accordingly, the fifth cause of action fails as a matter of law. The Fourteenth Amendment to the United States Constitution provides, No State shall ... deprive any person of life, liberty, or property, without due process of law.... 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 protection.27 Before examining whether Black Rock City was deprived of a property interest in the 2005 and/or 2011 contract(s) without due process, it must be first determined whether Black Rock City established in its complaint that it possessed a property interest that is deserving of constitutional protection.28 As set forth in relation to the Sixth Cause of Action, the contracts that Black Rock City seeks to enforce are void and illegal and unenforceable. Accordingly, the question becomes, does Black Rock City have a protected interest in an illegal, void, and unenforceable contract. It should be noted that [p]roperty interests are not created by the Constitution.29 Rather, [property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.30 In order to possess a property interest in a benefit, an individual must have more than an abstract need or desire for it or a unilateral expectation of it. 31 More precisely, an individual must possess a legitimate claim of entitlement to it.32
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Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055 (9th Cir. 2006). Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir.1998) Citing to Gilbert v. Homar, 520 U.S. 924, (1997). 29 Id. (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)) 30 Id. (citing Roth, 408 U.S. at 577). 31 Id. 32 Id. 10 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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Nevada law provides enforcement of an illegal contract will not occur in Nevada because such a contract is void.33 Most courts that have analyzed the issue have held that contracts that violate state or county law are void as a matter of law and do not create a valid property interest. In Shlay v. Montgomery, 802 F.2d 918, 919 (7th Cir.1986), the plaintiff alleged that he had been wrongfully deprived of a property interest. The Court held that contracts which are null and void are incapable of creating property interests.34 Other courts have similarly held that void contracts create no protected property interests.35 Accordingly, Plaintiffs right to procedural due process was not violated because it does not possess a protected property or liberty interest. Plaintiff will be unable to show any constitutionally protected property rights based on an illegal and void contract and therefore dismissal is appropriate because the complaint cannot and does not establish facts which could possibly prove the claim. C. Plaintiffs Third and Fourth Causes of Action Fail To Identify Specific Issues Upon Which Their Infringement Claims Rest, Fail To Factually Allege A Plausible Cause Of Action And Fail To Allege As A Matter Of Law Facts Which Would Support Their Bald Assertions
Plaintiff asserts that the Festival Laws unconstitutionally infringe on free speech which is guaranteed under the First Amendment of the United States. Complaint, 92102. Defendant Shirley concurs with the other Defendants Motion to Dismiss that Plaintiff cannot, as a matter of law, 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
Rivero, 125 Nev. 410, 216 P.3d 213; Vincent v. Santa Cruz, 98 Nev. 338, 341, 647 P.2d 379, 381. 34 Shlay, 802 F.2d at 921-22. 35 Walters v. Village of Colfax, 466 F.Supp.2d 1046, 1056-57 (C.D.Ill.2006); City of Beaumont v. Spivey, 1 S.W.3d 385, 395-96 (Tex.Ct.App.1999); Walsh v. Bollas, 612 N.E.2d 1252, 1254-56 (Ohio App.1992); Gwathmey v. Burgiss, 88 S.E. 816, 818 (S.C. 1916); Yasnoff v. Hallick, 963 P.2d 747, 749-50 (Or.App.,1998)(property right cannot be drawn from a void contract). 11 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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In its third cause of action, Black Rock City alleges that the Festival Laws are directed towards speech and expressive conduct and that the festival laws lack sufficient standards to guide the exercise of discretion by County licensing officials. Complaint, 94. Black Rock City fails to cite to any specific problems with the Festival Ordinances that justify its legal conclusion that the laws are directed towards speech and/or expressive conduct or lack the necessary limitations or guidance on discretion. As such, Black Rock City relies on mulled allegations and legal conclusions masquerading as factual conclusions, and fails to state a claim to relief that is plausible on its face. As such, the Third Cause of Action should be dismissed as failing to state claim upon which relief could be granted. Without having specific factual allegations, an attempt will be made to address the claims set forth in the Complaint. Essentially, Black Rock City raises a facial constitutional challenge and a challenge to the specificity given in the festival laws as to the discretion that county officials can exercise. In their Motion to Dismiss, the other Defendants address the arguments relating to Cause of Action Three. Defendant Shirley would incorporate and adopt the arguments and conclusions of the other Defendants Motion to Dismiss by reference. In addition to those arguments, Defendant Shirley would assert additional facts that support the conclusion reached by the other Defendants. As noted by the other Defendants, the Commissioners enacted provisions restricting the ability to consider the content of speech at an outdoor festival in the application process. Additionally, it is clear that the County made efforts to make sure that the ordinance was neutral as to the content of the message neutral. In the WHEREAS clauses (pages 1 and 2 of Exhibit
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M attached to the Complaint), the County Commissioners noted that the ACLU and Black Rock City commented on the Supreme Courts decision Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992) (proving [r]egulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated comply with the First Amendment. The Commissioners found that changes had to be made to the 2004-2011 Festival Ordinance to remove provisions that presumptively violated the doctrine in Forsyth County. Clearly, the Commissioners were concerned with ensuring that the final product did not regulate the content of speech. Just as the Commissioners attempted to ensure that there were no preemption issues (see pgs. 18-20, and 28, and 30 of Exhibit M), the Commissioners were trying to set forth nondiscretionary and non-discriminatory conditions for the issuance of the permit. The intent evidenced by both State Festival Law and Pershing Countys Festival Ordinance clearly promote the idea that the County was not trying to impose restrictions based upon speech but on safety and health requirements. Furthermore, the County limited its discretion to ensure that sufficient guidelines were followed so that content specific regulation did not occur. (2) Plaintiffs Fourth Cause of Action Should be Dismissed Because it Cannot Demonstrate that the Festival Laws are Unconstitutional As Applied
Defendant Shirley would incorporate by reference and adopt the arguments set forth in the other Defendants Motion to Dismiss. Plaintiffs Fourth Cause of Action should be dismissed with prejudice for failure to state a claim upon which relief can or should be granted based upon those arguments and conclusions. D. Preemption Issues (Relating to Causes of Action 1 & 2) 1. Preemption Generally Supremacy Clause
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The Supremacy Clause of Article VI of the United States Constitution provides that in cases of conflict, the state law must yield to federal law. In such cases, federal law is said to have preempted state law. The federal preemption of state law typically falls into two categories: express preemption and implied preemption (includes Field and Conflict Preemption). PRESUMPTION AGAINST PREEMPTION: [A] cardinal rule of preemption analysis is the starting presumption that Congress d[id] not intend to supplant state law.36 This presumption against preemption takes on added significance where federal law is claimed to bar state action in fields of traditional state regulation.37 Absent a clear and manifest purpose of Congress, the historic police powers of the States are not superseded by [a] Federal Act.38 2. Federal Property and Preemption Analysis
Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause.39 While the federal government has certainly has the power to legislate, it has not asserted exclusive jurisdiction over the public lands within the states.40 The federal government has left the states free to enforce their criminal and civil laws on federally managed lands.41 The question in the present case is whether Congress has enacted legislation with respect to federal land that would preempt the County/State Festival Ordinance. The Supreme Court set forth the following preemption analysis:
N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995). 37 Kuehne v. United Parcel Serv., Inc., 868 N.E.2d 870, 873 (Ind.Ct.App.2007). 38 Jones v. Rath Packing Co., 430 U.S. 519, 525-26 (1977). 39 California Coastal Comm'n v. Granite Rock, 480 U.S. 572, 581 (1987). 40 Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 22932294, 49 L.Ed.2d 34 (1976). 41 Id. 14 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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42 43
[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.42 A special recreation permit is governed by the Code of Federal Regulations, which recognizes that two Congressional acts are controlling, to with the Federal Land Policy and Management Act of 1976 (FLPMA--43 U.S.C. 1701 et seq.) and the Federal Lands and Recreation Enhancement Act (FLREA-- 16 U.S.C. 6801 et seq.)43. FLPMA sets forth the Congressional declaration of policy regarding the disposition and management of federal public lands.44 The FLPMAs intended purpose was not to preempt or conflict with state laws.45 The savings provision of the FLPMA reads as follows: (g) Nothing in this Act shall be construed as limiting or restraining the power and authority of the United States or-- (6) or as a limitation upon any State criminal statute or upon the police power of the respective States, or as derogating the authority of a local police officer in the performance of his duties, or as depriving any State or political subdivision thereof of any right it may have to exercise civil and criminal jurisdiction on the national resource lands; or as amending, limiting, or infringing the existing laws providing grants of lands to the States.46 Similarly, the provisions of the FLREA clearly reference Congressional intent with the following language: This bill is not intended to preempt any State, local or
Coastal Comm'n, 480 U.S. at 581, (citations omitted). 43 CFR 2931.3 (March 23, 2007). 44 Carden v. Kelly, 175 F.Supp.2d 1318, 1324 (2001). 45 Id. 46 Id.; citing to 43 U.S.C. 1701(g)(6) and Savings Provisions Section 701 of Pub.L. 94-579. 15 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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tribal law.47 [W]e accordingly begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.48 Reading the plain language of the provisions from both the FLPMA and FLREA, it is abundantly clear that Congress, through plain and unambiguous language, did not intend to preempt any State or local laws.49 Just as courts may not find measures pre-empted in the absence of clear evidence that Congress so intended, so must they give full effect to evidence that Congress considered, and sought to preserve, the States' coordinate regulatory role in our federal scheme.50 The Congressional intent is also mirrored in the Code of Federal Regulations (CFR). Weight should be given to the interpretation given by the agency which bears the responsibility of enforcing federal statutes.51 43 CFR 2933.31(Feb. 21, 2007) 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." 43 CFR 2933.32 (Feb. 21, 2007) 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 (May 17, 2010) (State and local laws) (i.e. subpart 8365) provides in pertinent part that: 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. The plain language of the CFR regulations indicate that state police powers are not preempted by the regulations involving special recreation permits.
47
House Report 108-790. http://www.gpo.gov/fdsys/pkg/CRPT108hrpt790/html/CRPT-108hrpt790-pt1.htm. 48 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992). 49 Cannon v. University of Chicago, 441 U.S. 677, (1979) (Congress is presumed to know the effect of its acts). 50 California v. Federal Energy Regulatory Commission, 495 U.S. 490, 497, (1990). 51 Wyeth v. Levine, 555 U.S. 555, 577 (2009) (agencies have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an obstacle to the accomplishment and execution of the full purposes and objectives of Congress ) (citations omitted). 16 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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52 53
3.
Black Rock City Failed To Establish An Express Preemption Claim
Express preemption occurs when a federal law specifically or expressly states that it preempts state or local law. In areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest. 52 Congress can define explicitly the extent to which its enactments preempt state law.53 However, even if 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."54 When Congress has expressed a determination to preempt, state law is only preempted to the extent that it actually conflicts with federal law.55 The analysis of the claims in Causes of Action One and Two must begin with an analysis of congressional intent. As noted above in relation to Federal Public Lands, there is no evidence to indicate that Congress intended to preempt state civil and criminal laws under the FLMPA or FLREA. In fact, quiet to the contrary, Congress has indicated that it did NOT intend to preempt state civil and criminal law. Furthermore, the Police Powers exercised under NRS 244.354 et. seq. and the Pershing County Code56 existed prior to enactment of the FLMPA. Police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.57 The BLM Permit Conditions specifically provide that the permittee shall comply with all federal; state; and local laws; ordinances; regulations; and shall ensure that all persons under the authorization have obtained all required Federal, State, and local
Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, (2005). English v. General Electric, 496 U.S. 72, 78 (1990). 54 Group v. Good, 555 U.S. 70, 76 (2008). 55 English, 496 U.S. at 79; Pacific Gas & Electric Co. v. State Energy Commission, 461 U.S. 190 (1983) (Dealing with nuclear energy plants). 56 See Exhibit #1 (Copy of the 1970 Festival Ordinance). 57 Wyeth, 555 U.S. at 565, 1187. 17 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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licenses or registrations. See Exhibit O to the Complaint, page 2, a. Black Rock Citys own complaint provides facts that defeat a claim of preemption. Nothing in complaint alleges any express federal provision that would create a preemption issue or that would overcome the presumption against preemption. Furthermore, Congress expressly indicated that it was not preempting state laws in passage of the enabling legislation. The intent of Congress governs and there is no express preemption. To the extent that the claims under Cause of Action One and Cause of Action Two rely on a theory of express preemption, such claims cannot not be proven beyond a doubt. 4. Black Rock City Failed To Establish A Field Preemption Claim
Express preemption cases are less common because Congress intent to preempt state and local laws must be expressed clearly in the legislation. Most preemption cases involved implied preemption situations in which Congress has not explicitly indicated that it intends to preempt state or local law, but in which the structure or the purpose of the federal legislation suggests that Congress intended to displace state and local law. The United States Supreme Court has identified two types of implied preemption: field preemption and conflict preemption.58 Field preemption occurs where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it.59 [Field preemption] reflects the view that Congresss intent to occupy a given field can be inferred from the pervasiveness of federal regulation and/or the dominance of the federal interest in a particular area of legislative activity.60. In field preemption, as with other preemption categories, the issue is always one of congressional intent. Congress will be deemed to have preempted an area only where either: (1) Its
58 59 60
See Gade v. National Solid Wastes Management, 505 U.S. 88 (1992). Id. Mass. Assoc. of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir.,1999)
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intent is unmistakable; or (2) Where the nature of the regulated subject matter permits no other conclusion.61 The analysis of a field preemption claim requires that, first, the Court identify the legislative field that the state law implicates and, second, determine if Congress intended to occupy the entire field.62 The Supreme Court has noted that in assessing the boundaries of the federal law i.e., the scope of its pre-emptive effectthe Court should look to the federal statute itself, rather than speculate about Congress' unstated intentions.63 There is clear indication that Congress did not intend to preempt state law or to occupy the entire field of regulation and that it specifically was not preempting state police powers. The State of Nevada has a historic need to exercise its police power to ensure safety of its citizens and those individuals in its borders that conduct an assembly of more than one thousand people that may cause sanitary, water, fire, police, safety, and other welfare related issues. As to the second prong, nothing in the Congressional act indicate an inclination to occupy the entire field or to prevent local counties from promoting safety and welfare, while simultaneously ensuring that the costs incurred by local government due to an outdoor assembly like Burning Man are recouped. Even the BLM recognizes in CFR 43 CFR 8365 that the state law statutes are not preempted and that permittees must comply with local and state laws. The BLM Permit General Conditions indicate that an Applicant must comply with State laws and that state laws are not preempted by the federal action. Accordingly, there is no basis for a determination of field preemption. Black Rock City has failed to set forth facts that would prove a field preemption claim. Accordingly, because there is no doubt that they cannot prove it, this claim must be dismissed. 6.
61
Black Rock City Failed To Prove A Conflict Preemption Claim
27 28
See Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963). Martin ex rel. Heckman v. Midwest Express Holdings, Inc., 555 F.3d 806, 808-09 (9th Cir.2009). 63 Wyeth, 555 U.S. at 596, (citations omitted).
62
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64
The second type of implied preemption, conflict preemption, occurs if there is an actual conflict between Federal and state law. A conflict in terms of preemption requires that either an impossibility of compliance with the federal and state requirements or an obstacle to the accomplishment of Congress objectives.64 Under an impossibility analysis, the real issue is whether the federal and state regulations are drafted in such a way that it is impossible for a person to obey both the federal and state regulations simultaneously.65 To determine whether a state law stands as an obstacle to the accomplishment of Congressional objectives, a court must examine the federal statute and identifying its purpose and intended effects.66 Ultimately, the state law must be inconsistent with the Congressional intent. While Black Rock City alleges that there is a conflict between the Potential BLM Permit and Pershing County License Conditions, it does not allege what the alleged conflict is in terms of preemption. Black Rock Citys claims fail legally and factually because Black Rock City has not specifically pled any facts which show that there is a preemption conflict. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.67 Plaintiffs First Cause of Action fails to allege specific facts which would demonstrate that a conflict exists between federal law and the Festival Laws. Without identifying any specific conflict, the First Cause of Action alleges that the Pershing County Festival Ordinance [s]pecifies criteria for approval and authority to impose obligations on the Burning Man Event which are different from and inherently conflict the BLM Permit and conflict with federal law and BLMs rights. (See Complaint, 86). Based upon this alleged conflict, Black Rock City argues a violation of the Supremacy Clause. (Id. 87). An inherent conflict is not the same as a preemptive conflict. When
Ruthardt, 194 F.3d at 179.; Whistler Invs., Inc. v. Depository Trust and Clearing Corp., 539 F.3d 1159, 1166 (9th Cir.2008). 65 See McDermott v. State of Wis., 228 U.S. 115, (1913) 66 Crosby v. National Foreign Trade Council, 530 U.S. 363, (2000). 67 Ashcroft, 556 U.S. at 678. 20 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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analyzing a case under the theory of conflict preemption, the court must ask if the intent of Congress is able to be carried out, or if the state law in question in inconsistent with that intent, or if the enforcement of Congressional intent is rendered impossible by the presence of the state law.68 Inherent conflict does not render compliance with both federal and state laws impossible. Congress intent with allowing special use permits on BLM managed property was to: (1) Establish outdoor recreation as one of the principal uses of those lands (See 43 U.S.C. 1701(a)(8) and 1731); and (2) Allow BLM to establish, modify, charge, and collect recreation fees for use of certain federal recreation lands and waters (See 16 U.S.C. 6802). Furthermore, Congress has indicated the it did not intend to preempt state criminal and civil laws are not preempted. Inherent conflict does not set forth facts showing or legal basis that the state law is inconsistent with Congress express intent. Inherent conflict does not set forth a legal basis to conclude that the express intent of Congress cannot be carried out. Plaintiffs second cause of action is no better. The Second Cause of Action specifically limits itself to the 2012 Pershing County Festival License Conditions, alleging preemption by the 2012 BLM Permit because conditions are allegedly different and/or more restrictive than the 2012 BLM Permit. (Id. 90). Different and/or more restrictive does not render compliance with both federal and state law impossible nor does it interfere with Congressional intent. Black Rock City provides a laundry list of conditions without identifying how any conflict under a preemption analysis. Rather, Black Rock City relies on conclusory allegations without any specifics. The failure becomes all the more apparent with an analysis of the Pershing County Festival Ordinance (Exhibit #M & #N of the Complaint) (enacted under the Pershing County Code (herein PCC)). While Black Rock City attached Exhibit #M, Black Rock City has not informed the Court in its pleadings PCC 5.16.105 provides:
68
Ruthardt, 194 F.3d at 179.
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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 Commissioners 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 final BLM approved plan of operations as part of the application to satisfy the requirements for a Plan of Operations herein. (Emphasis added) Black Rock Citys Omission is intentional because such a clause would defeat much of what Black Rock City identifies in its laundry list of nonspecific conflicting items. The specific Plan of Operations conditions are found in PCC 5.16.100: (1) Water Facilities; (3) Food Concessions; (4) Sanitation Facilities; (5) Medical Facilities; (6) Parking Areas; (7) Access and Parking Control; (8) Hours of Operation; (9) Illumination; (10) Overnight Camping Facilities; (11) Fire Protection; and (12) Communication System. These Plan of Operations conditions are part of the laundry list provided by Black Rock City. As it relates to these Plan of Operations conditions, there is no basis to conclude that a conflict exists on these issues because the Festival Ordinance already cedes to the federal governments approach on these issues. In fact, a review of the Exhibit S & T shoes that these conditions are not in conflict in an practice. As to the Plan of Operations Conditions, there is no Supremacy Clause issue. The Pershing County Festival Ordinance also requires that Police Protection be arranged. The BLM specifically requires in its Special Recreation Permits, as alleged by Black Rock City in their complaint (See Complaint, 4), that Black Rock City is required to make provision for and pay for enforcement of state laws by the Pershing County
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Sheriffs Office. Accordingly the Police Protection provisions are not in conflict with BLM regulations or federal law. Furthermore, the licensing process actually protects Black Rock City by providing a readily available remedy to seek judicial review (not available in a contract negotiation contract provided for in the BLM Permit). With respect to Fire Protection, PCC 5.16.120 (c) provides that the BLM requirements will be accepted unless: (1) There are problems which would inhibit, prohibit, or restrict the Pershing County fire, rescue, police, and other emergency services from providing services which the BLM/Federal Government does not provide; or (2) There are unfunded mandates placed on Pershing County which are created by the BLM Special Use/Recreation Permit. The provision goes on to provide that [i]f there is a conflict, Pershing County will attempt to resolve the issue with the BLM and invite input on how to resolve the issue from the BLM in accordance with standard Memoranda of Understanding between Pershing County and the BLM. Accordingly, there is no preemption conflict with Federal Law. Unlawful Acts: Its complaint (Complaint, 81) indicates that Black Rock City believes compliance with Pershing County Code 5.16.180 (D) (3)-(7) (local codification of NRS 244.3548 (3)-(7) as required by NRS 244.3548) violates the preemption doctrines because it requires something in outside of the BLM Permit. These provisions are also made part of the laundry list relating to the second cause of action. The specific provisions of PCC 5.16.180 (D) prohibit the Licensee from creating a nuisance, allowing obscene, indecent, vulgar, or lewd exhibitions, allowing disorderly conduct at the festival, allowing possession or sale of intoxicating liquor without appropriate permission, or allowing the use, possession, or sale of controlled substances. In addressing this issue, there is no conflict because the BLM Permit and 43 CFR 8365 provide that Black Rock City is required to comply with local laws (and Nevada State law). This would necessarily include the provisions of PCC 5.16.180. The provisions of the BLM Permit require that Black Rock City comply with local and state laws in order to obtain and keep the Special Recreation Permit. See Exhibit O of the 23 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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Complaint. A strong presumption exists that the historic police powers of the states were not to be preempted unless that was the clear and manifest purpose of Congress.69 The historic police powers of the state extends to almost everything within its borders from the suppression of nuisances to anything else that the legislature may deem opposed to the public welfare.70 The aforementioned provisions are all express state police powers that have been both historic and ongoing. The regulation of alcohol use and sales is an express power given to the State of Nevada under the 21st Amendment. The remaining powers are, at a minimum, guaranteed under the Tenth Amendment. The only one of these areas that is addressed in the BLM Permit is possession of controlled substances. In this instance, there is no difference between the BLM Permit and County License Condition. Furthermore, it is recognized that there is concurrent jurisdiction by the State and Federal governments over controlled substances. In order to prevail on its conflict argument, Black Rock City must allege and prove that the federal government is authorizing it to violate state laws or that the BLM Permit requires action that makes it impossible to stay in compliance with state law police power enactments. There is no conflict preemption. 7.
69 70
Dismissal of Counts I and II
California v. ARC America Corp., 490 U.S. 93, 101 (1989). See Bartemeyer v. Iowa, 85 U.S. 129 (1873); Boston Beer Co. v. Massachusetts, 97 U.S. 25 (1877); Northwestern Fertilizing Co. v. Village of Hyde Park, 97 U.S. 659, (1878); Stone v. Mississippi, 101 U. S. 814 (1879); Foster v. Kansas, 112 U. S. 201 (1884); Mugler v. Kansas, 123 U. S. 623(1887); Powell v. Pennsylvania, 127 U. S. 678(1888); Kidd v. Pearson, 128 U. S. 1 (1888); Kimmish v. Ball, 129 U. S. 217 (1889); Paul v. Jackson, 910 S.W.2d 286 (Mo.App., 1995) (Nuisance); U.S. v. Bird, 401 F.3d 633 (5th Cir., 2005) (disorderly conduct); Roberts v. Clement, 252 F.Supp. 835, (E.D.Tenn., 1966) (lewd conduct or indecent exposure); California v. LaRue, 409 U.S. 109, 115, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) (TwentyFirst Amendment states have primary jurisdiction and great discretion to regulate the sale and use of alcohol); Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425 (1921) (no question of the authority of the state in the exercise of its police power to regulate habit forming drugs...The right ..is so manifest in the interest of the public health and welfare, that it is unnecessary to enter upon a discussion of it beyond saying that it is too firmly established to be successfully called in question). 24 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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Causes of Action One and Two of Black Rock Citys Complaint fail to establish either express or implied preemption. It would appear[] beyond doubt that the Complaint fails to set forth facts which would entitled Black Rock City to relief under either Cause of Action One or Two. Furthermore, the claims are either moot or not ripe as set forth above. Dismissal with prejudice is appropriate. D. The First, Second, Third, and Fourth Causes of Action Are Either Moot And/Or Not Ripe
As Black Rock Citys Preemption and First Amendment Causes of Action assert facts which apply to the 2012 Burning Man Event, those claims are moot without some showing of a preemption violation or First Amendment violation. Nothing in the complaint shows that the 2012 Event would not occur because of the alleged preemption issue. Nor has Black Rock City amended its complaint since completion of the 2012 Event (service was not effectuated until weeks after the 2012 Event). Because the matter is moot, there is no case or controversy as that can be litigated. As the First Amendment and Preemption Causes of Action relate to events in 2013 or subsequent events, the Court should determine the ripeness of [the] claim[s] by asking whether the issues are fit for judicial decision and whether the parties will suffer hardship if [the Court] decline[s] to consider the issues.71 Application of the Pershing County Festival Ordinance to the 2013 Burning Man Event has not occurred. Black Rock City has not applied for a license. Without a license, there is no way to determine that an injury will occur. The BLM Permit requires that Black Rock City comply with the provisions of Nevada Revised Statute. Black Rock City cannot even begin selling their tickets to the event until they have obtained a license. See Exhibit M and NRS 254.354 et. seq. In the context of Black Rock Citys pre-enforcement constitutional challenges, where Black Rock City has not been penalized for a violation of the ordinance, neither the mere existence of a prescriptive statute nor a generalized threat of prosecution
71
Canatella v. State of California, 304 F.3d 843, 854 (9th Cir.2002).
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satisfies the case or controversy requirement.72 Black Rock City has not shown more than a generalized allegation that the Festival Ordinance will be preempted by federal law and that there may be some First Amendment curtailment. Black Rock City fails to allege specific facts that show more. They have not shown that any injury has occurred or that any injury is about to occur. Rather, the conspicuous absence of any alleged injury in 2012 speaks loud and clear that there are no real injuries involved. The bare boned and unsubstantiated allegations are insufficient as a matter of law to overcome the justiciability requirement of having a ripe case or controversy. All four counts should be dismissed. G. CONCLUSION
Based upon the points and authorities herein, Plaintiff fails to allege sufficient facts to support their claims or to overcome the inherent legal problems with the claims asserted. The First, Second, Third, Fourth, Fifth, and Sixth Causes of Action should be dismissed because they fail to meet the facial threshold of plausibility because they are legally unrecognizable claims on the facts of this case. The claims are not viable and do not give rise to liability against Defendant Shirley or, for that matter, the other 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(b)(6). DATED this 9th day of October, 2012.
______________________________ JIM C. SHIRLEY PERSHING COUNTY DISTRICT ATTORNEY P.O. Box 299 Lovelock, Nevada 89419 (775) 273-2613 Facsimile (775) 273 7058 Email: JShirley@pershingcounty.net
72
Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990 (9th Cir., 2010) (quotations omitted). 26 | P a g e D e f e n d a n t S h i r l e y s M o t i o n t o D i s m i s s
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AttornevName
OF CERTIFICATE SERVICE of Pursuant FRCP5(b),I certify I am an employee ThePershing to that and District Attorney's Office, thaton thisdate, I filedtheforegoing County which system, CM/ECF District Court's ro with States Monoru Dtsvtts the United parties willserve following the electronically:
Telephone/Fax/Email
Partv Represented
Reid, Esq. Tamara Nevada StateBar#9840 10 Holland HartLLP & Floor Lane, Second 5441Kietzke 11 NV 1 Reno, 8951 12 TerryGross, Esq. 1 3 AdamBelsky, Esq. Belsky Alonso LLP Gross 14 Street, Suite3670 OneSansome CA SanFrancisco, 94104 15 1 6 Brent Kolvet, Esq. T. B Blvd., Suite 6590S. McCarran 1 7 Reno, Nevada 89509 18 19 20 21 22 23 24 25 26 27 28
26 lPage
Tel: (775) 327-3000 Fax: (775)786-6179 Email: la com treid @hol ndhart.
Plaintiff
Tel: (415)544-0200 Fax: (415)544-0201 Email: terry@gba-law.com

Tel: (775) 786-2882
Plaintiff
Defendants, lrwin, Bloyed, Email:BTK@thorndal.com Shank, and Machado Pershing Bd. County of Comm.
DATEDthis9th of October day ,2012.
, SIGNED LisaPruit
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Case 3:12-cv-00435-RCJ-VPC Document 16-1
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Jim C. Shirley Pershing County District Attorney Pershing County Courthouse 400 Main Street P.O. Box 934 Lovelock, Nevada 89419 (775) 273 2613 Facsimile (775) 273 7058 Email JShirley@pershingcounty.net UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) ) ) ) Board of Pershing County Commissioners, ) and ) Pat Irwin, in his official capacity ) as Chairman, Board of Pershing County ) Commissioners, ) ) and Carol Shank, in her official capacity as Vice- ) ) Chairman, Board of Pershing County ) Commissioners, ) and ) ) Darin Bloyed, in his official capacity as ) Pershing County Commissioner, ) and ) Jim C. Shirley, in his official capacity ) as District Attorney of Pershing County, State ) ) of Nevada ) and ) Richard Machado, in his official capacity ) as Sheriff of Pershing County, State of ) ) Nevada, ) ) Defendants. ) Black Rock City, LLC, Plaintiff, v.
Case No. 3:12-cv-00435
DEFENDANT JIM SHIRLEYS MOTION TO DISMISS THE PLAINTIFFS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
Exhibit #1 Festival Ordinance Enacted Into Pershing County Code in 1970

i|Page Defendant Shirleys Motion to Dismiss
BILL NO. 45 ORDINANCENO. 45 AN ORDINANCE REGULATING AND LICENSING OUTDOORFESTIVALS, MUSIC FESTIVALS, DANCE FESTIVALS, ROCK FESTIVALS AND PROVIDING FOR APPLICATIONS OTHER SIMILAR MUSICAI ACTIVITIES, FOR AND LICENSES FOR SUCH FESTIVALS, PROVIDING FOR THE HOLDING OF A PUBLIC HEARIIG IN CONI\IECTIONTHEREI'IITH, PROVIDITG FOR A PROCEDT'REFOR THE REVOCATION OF ANY SUCH LICENSE AS I.IELL AS THE RETNSTATE}IENT 0F SAl,lE, DECLARTNG AtI EMERGENCYAND PROVIDIIG FOR ]IIE EFFECTIVE DATE OF THIS ORDINANCE, PROVIDING PENALTIES FOR THE VIOLATION THEREOF AND OTHER MATTERS PROPERLY RELATING THERETO.
WHEREAS, the governing, rock regulating or
County
of
Pershing for
presently music
has no ordinance dance festivals, any other for the sane, areas and in
or provlding similar
festivals, nor is
festival-s,
music activities, regulating Board is
there
legislation
presently WHEREAS, the
governing, undersigned
or providing advised that
several of
Western for the
Nevada have recently holding of same, and are
been considered
by sponsors
such festivals
WHEREAS, there might be considered
certain for
portions the holding
of of
Pershing
County which and of
desirable health,
such festivals, of the citizens
I.II{EREAS, the Pershing adopted,
safety
and welfare that the within
County make it and WHEREAS, the
imperative
ordinance
be imrnediately
Board of
Cor:nty Conmissioners
feels
that
an
emergency exists. NOI{ TIIEREFORE, the of Pershing, Nevada, ordinance Board find of Cor.rrty Commissioners that effect of the County
do hereby
an emergency exists immediately
and that adoption.
the within /
shouLd go into
upon its
BE IT THEREFOREORDAINED BY THE BOARD OF COUNTY COMMISSIONERS
NEVADA,AS FOLLOWS: FOR AND ON BEHALFOF THE COUNTY PERSHTNG, OF

SECTION 1. FESTIVAL DEFINITION OF OUTDOOR means any musie festival, dance festival,
rrOutdoor festivalrr
- 1 -
rrrockrr festival by paid or
or
slmilar
musical
activityn
at whieh music
is
provided is hel-d at
amateur other
performers in
or by pre-recorded building
means, which
any place which ing
than
a permanent
or permanent for the
instalLation of conductthe
has been constructed or
or made avaiLable activlties, for
purpose
such activities are invited
similar
and to which members of free of cost.
publie
or admitted
a charge or
SECTION 2. No person or furnish he shall conduct tickets first
LICENSE REQUIREMENT shalL for operate, maintain, festival from the conduct, in the advertise, or sell unless or
an outdoor a license
County of Pershing
Pershing to
obtain
County of
operate
such festival. SECTION 3. Application LICENSE APPLICATION for to the days prior a License Clerk to of the to the time conduct an outdoor festival shall at
be made in writing least of the sixty (50)
Board of indicated
County Commissioners for the
commencement
planned
activity $150,
and shall and sha1l
be accompanied contain the
by a nonrefundable information: of ls the person made by a must
application (1)
fee of
following
The namer &Be, residence making said partnership, appear. cation application. the
and mailing If the
address
applieation of the
names and addresses applieant by the is
partners
Where the
a corporation, vice
the appll' president of and
must be signed thereof officers;
president, the
secretary corporate of Q)
and rm-rst contain and a certified shallbe submitted
addresses the
said
copy of with or the
Articles
fneorporation of
application. of festivaL or carry on,
A statement which the
the
kind,
character, to
type
applicant or
proposes
conduct, of the
operate place
(3)
The address proposed orr. ship
l-egal description is
where the or carried of owneror
festival
to be conducted, applicant
operated
Additionally, of the place
the
must submit is to
proof
where the
festival
be conducted
a statement his consent
signed that
by the site
owner of
the
premises the
indicating festival.
the
be used for hours during
proposed the
G)
The date is
or dates
and the
which
festival
to be conducted. of the number of persons conducted. shall provide names and addresses a financial festival. the the applicant Sherlff shallarrange of anyone customers, to spectators, the particifor
(s)
An estimate pants
and other is
expected
attend
festivaL
each day it
(5)
The applicant eontributing, greater than time
investing $500 in of making
or having the
interest
producing application
0)
At the to
be fingerprinted
by office
of
of Pershing
County.
(8)
If
the
applicant
is
a corporation, shal-l: State of
in
order
to
receive
license, L.
such corporation in the
Be incorporated
Nevada,
although
such of the
corporation a corporation United 2. 3. the 4.
may be a wholly which is
or partly in
owned subsidiary another state of
chartered
States; an office all of of the the corporation of in Nevada; Laws of and of the
Maintain
Compl-y with State of
reguirenents to
the
Nevada pertaining a ledger ln in the
corporations; office
llaintain
principal shal-l: the
eorporation (a) of (b)
Nevada, which times issued reflect by the for
At al-l security
ownership
of and
every
class
corporation; by the
Be available
in-spection
board
at
all
tLmes without
notice. of the corporation, partners, where a where the
(e)
All
officers
and directors is is the applicant,
corporation applicant
and al-l
a partnership,
must be licensed
individually,
- 3
according ment of requiring
to the
the board,
provisions the of public the
hereof, interest
and if, will-
in
the judgby
be served
any or all lenders,
corporationr of
s indivldual of indebtedness, to be to
stockholders, underrcriters, licensed, apply for the
holders
evidence or
key executives, corporation shall
agents
employees
require with
such persons the
a license effect at
in accordance the time
laws and requiresuch licensing.
ments in
the board requires
SECTION 4. A detailed security and fire explanation protection, sanitation space, or of water facilities, the
FESTIVAL PLANS applicantfs plans to provide food supply
supply
and facilities,
and facilities, vehicle if at it is parking
medical- facilities traffic
and services, control, will and, remain
vehicle
access and on-site that spectators for
proposed or
expected the
or partLcipants illuminating accompany the shal1 provisions event the
night
overnight,
arrangements facilitiesrshall include of
premises
and for
camping or
similar shall in
appLication. be made for for c3-eanup
The appLicantrs numbers of of the
plans
what provisions the estimate, after the
spectators
excess of
premises plan
and removal
rubbish of the
has eoncluded, those for
A plot parking,
showing
arrangement
facilities
including with said
egress
and ingress
shal-l be submitted SECTION 5.
application.
PROCESSINGAPPLICATION appLication and the shall set appl-ication the fee,
Upon receipt the for not not Clerk public less less of the
of
a complete
Board of at
Cor:nty Commissioners meeting of the
application Commissioners, give He shallto the Sheriff, Attorney, Board
hearing than than give
a regular
Board of
County
15 days nor
more than notice
30 days thereafter, thereof of to the
and shall
L0 days written notice of
applicant.
promptly the
hearing the
and copies
the
application
County Health
Officer, the
County Road Foreman and the and report in writing
District to the
who shall
investigate
appLication
of
County Commissioners
not
later related
than to
the their
tlme
set
for
the
hearing,
with
appropriate granting
recommendations
official-
functions,
as to
a license
and conditions
thereof.
SECTION 6. CONSIDERATION OF APPLICATION BY BOARD OT COUNTY COMMISSIOMRS Based upon the at said hearing, license, the or testimony of the witnesses and evidence shal-I grant or If the presented llcense, given are
Board of set
Corrnty Comnissioners
deny the that
conditions
which must be met, may be granted. furnish or
security
they will
be met, Board,
before the
a license shall
conditions
imposed by the to said
applicant all
cause to
be furnished the license may
CLerk proof by said
that
conditions
have been met before
be issued
Clerk. SECTION7. ISSUANCE: LICENSE FEE, NON- TRANSFERABLE L ICENSE
When the the County Auditor specifying licensed
County shal-L, the
Clerk
certifies
that
conditions day of
have been met, operation, the kind of issue
upon payment of name and address number of license daysr ln
$l-00 per of the
a license festival licensee premises license
license,
and the
operation
authorized. place
The upon the No removed
shal-l- keep said at which issued the
posted at which Chapter
a conspicuous fesEival is
premises to this
the shall
conducted. or
pursuant
be transferable
to another
location. SECTION 8. At the hearing required LICENSII$G CONDITIONS r:nder Section 5, the Board of County
Commissioners issuance a matter lmposed. of of
may establish
conditions this
which must be met prior except which that the
to the
any license submission
r:nder
Chapter, determining
Board rnay take shallbe notice
under
before
conditions
Where the
Board takes
a matter
under to
submission, issuanee
written of
any conditions to
imposed as prerequisite the applicant within
the
a license the original
must be mailed hearing.
fifteen
(t5)
aays of
The conditions Conmissioners tection attending of pursuant to
whieh the
nay be imposed by the police
Board
of
County the pro-
Countyr s general of local
power for
health, festivals
safety in the
and property County,
residents
and persons
are as follows:
(a)
PoLIcE PRoTEcTIoN- Every licensee

orrn expense, officers of shall pol-ice protection.
shall
empLoy at his
of
Ttre number and type and specified for the in by the
be determined to provide
Sheriff of place
Pershing
County
preservation the
order of the
and protection festivaL.
of property Funds to employ the
and around specified hourly with to the
this
nr.:rnber of salary the rate County
law enforcement for of Sheriffts Pershing the at
officers Deputies, least is ten to
at shall
eurrent
be deposited days prior
(10) occur.
specified
date
activity for
A minimum of expected Sheriff to
one Law enforceto be in attenthe
ment officer dance shall employment ments of the
every
500 persons l{here the
be reguired. of off-duty Chapter, direction
specifies
peace officers said
meet the shall Sheriff
requirebe under of the the all and
this
peace officers of nust will the
complete of
and controL The Sheriff peace offieers
County requisite times
Pershing. number of operations, the event,
be satisfied be provided tlme is prior
that at to
of
p1-us any specified before a license shall
foLlowing (b)
issued. provide from an ample purPoses facil-ities prior
I,{ATERFACILITIES supply of portable
- Every water
licensee for
drlnking
and sanitation of water
on the premises of on the to premises
the festival.
Location by the
must be approved a lieense. of water to
Health
Officer
issuance of
The nininum fifteen
supply
outdoor for
festival in
shall
be
(1-5) gal1-ons of water
each person
attendance
per
day.
A11 water Public
shall
meet U. S. Public flush
Health
Service
standards, lavatories determined

(c)
and private facilities
type water shal-l
closets, as
and drinking by the
be required
County Health
Offlcer. festival eating is to be food be the the
FOOD CONCESSIONS Where the hel-d a substantial handling reguired premises number of places to for distance or like
proposed from public
ptaees, shall at feed
establishments, that food wil-l to
applicant be available adeguately
demonstrate each day of
operation to be in
persons
expected
attendance. trnder a valid ordinances at least and
Concessionaires Health state
m.rst be licensed permit pursuant shall
and operate to local
Department laws. Every closet
licensee
provide
one flush
type water facility within for the
and lavatory
for
each sex in concession operation
a cl-osed or operation r:nless
empl-oyees of area by the
each food of
enclosure approved
such food Officer. HealLh
otherwise
Health the
Under no circumstances flush than type water fifty (50) closets feet
shall-
Officer to
all-ow
such
and lavatories food
be LocaLed more or operation, food hot concessions
from the in
concession with with
Al-1 lavatories and food water type
required shall
conjunction be provided shall-
operations pressure faucet. closets,
and cold by an approved
under mixing
which
be dispensed sink sinks waste
A11 sewage, 1-avatories, or
and waste in
water
from water with of to food
operated
conneetion
concessions
food operations
shallbe disposed system approved
a public County
sewer or a sewage disposal Health Officer. RE-QUIRE! - Every flush type water
by the
(d)
SANITA::ION .FACILITIE$ at least one enclosed
licensee closet
shall facii-ity
provide marked
rrmenrr and one such facility of a festivaL on the basis
marked rrwomenrr on the of one flush type lrater (40)
premises closet females for
each forty
(a0)
mal-es and one for
each forty
expected for ratio sixty the of
to
be in
attendance. flush type
Urinal-s water
may be substituted for men on the el-oset per
regulred
closets type
one urinal males. provided towels for
and one flush
water
(60)
Lavatories and paper 1-avatory in
with
cold
lrater
under on the
pressure' basis of
soaP one to be
shall
be provided (75)
each seventy-five
persons
expected
attendance. type water in cLosets carrnot be made available the Board rnay aLlow the use
Where flush for of the
persons
attendance toil-ets.
portable
chemical toilets before
Such chemical Heal-th Officer toilets expense the shaLl
must meet the any lieense
approval-
of
the
County
may be issued. the
Chemical
be emptled
and recharged. at to proeedures
licenseers by flush
as necessary
pursuant
established for water
County Health cl-osets use of
Officer. for food
The reguirement concessions,
type water and for licensee ean with lid for the
food
operations Every one (l) a tight trash fitting
empl-oyees may not to furnish
be waived. at least with
shal1
be required (36)
thirty-six
ga1lon (25) supply
capacity
each twenty-five an adequate receptacles all it times shall
persons of
exPected
to be in to fit
attendance, the trash
plastic
bag liners
sha1l
be provided
and each container inserted and bag
shal-1 at when full liner
have a plastic be tied,
bag liner
removed and a new plastie and removal- of least refuse,
inserted.
The pickup shall
trash,
garbage often trash (e) if
and rubbish regulred
be at
once a day and more Removal of exPense. is expeeted all
by the Health shall be at the
Officer. Licenseers
and refuse
MEDICAL FACILITIES
- Where a proposed
festival
Filed 10/09/12 Page 10 of 17
to
attract
a large
number of from
persons adeguate
for
a site
located treatment
a substantial facll-ltles the
distance appl-icant
existing
shaLL be reguired facilities
to provide premises located shall treatment of close provide
emergency medicalthe to festival.
treatment
on the is
l.lhere the
proposed
festival
adeguate existing by the
facilities Health Officer
the
applieant
as reguired faciLities The location chiatrists, to staff
emergency
on the premises of of sueh facilities,
the festival. number of and other guantity doctors, aides psyneeded suppbe
psychol-ogists, said facilities ambulances, be approved issuance of
nurses and the
of medical that
1ies, on site prior
drugs, shaLl to the
and other by the
equipnent
nust
County
Heal-th Officer this the Chapter. need for expected the to duration inand
any license shall
under
T?re Cotrnty Health medical to of attend events servicesn
Officer
calculate number of
based on the their
persons
a festival, planned
expeeted possibility elements.
age group, of
and the
exposure
cl-ement weather other access adeguate
and outdoor space shall for to
Traffic
lanes
be designated
and kept
open for
and travel
ambul-ance, helicopter transport treatment licensee attendlng patients, facilities. shal-l the provide festival or
and other staff to aPpro-
emergency vehicles priate (f)
on and off-site
PARKII.IG AREAS - Every ing space for persons
adequate by motor
park-
vehicle. Persons called two (2) vehicle. desiring upon to persons to operate or conduct a festivalmay be every
provide expected
a separate to attend
parking the
space for
festivaL sha.ll (12) of
by motor be clearly feet wide
Such individual not feet
parking than
spaces twelve
marked and shaLl and twenty QO)
be less long.
The Sheriff
Pershing
- 9 -
Filed 10/09/12 Page 11 of 17
must approve license shall
an applicantrs be issued.
rrparking
plant'
before
(e)
ACCESS AND PARKING CONTROL - Every adequate ing areas ingress therefor. shall and egress to
l-icensee
shall
provide and parkand the of traffic a part mainof
festlval roads,
premises driveways flow
Necessary exist to
entranceways into the the
insure
orderly
premises
from a highway
or road which is
is
County
System of State
Highrvays or which of Nevada.
a highway
tained fire
by the equipment,
A special
accessway for
ambulances
and other
emergency vehicles
may be required. licenseers be issued. Additionally, traffic guards plan
The County Road Foreman must aPProve the for ingress and egress before a license shall
any applicant are under his
may be reguired ernploy to congestion insure in
to
show that orderl-y traffic of
movement and relieve the (h) festival area.
traffic
the vicinity
HOIIRS OF OPERATION license under this
A1l
festivaLs shallof
which close
are
subject
to
Chapter the
and cease operation A.M. and 6
continuously
between
hours
2 o'clock
orcl-oclc A. M. of (i)
eaeh and every lieensee to
day. to conduct who attend dark, those shall areas a festivaL the provide which of plan A on
ILLTMINATION - Every after festival electrical dark, to or
planning
planning
all-ow Persons premises insure allafter that times.
remain
on the to
il-lumination are lighted
are occupied Pershing
at
The Sheriff lighting hereunder.
County must approve to issuance to
an applicantts of a license
as a prerequisite licensee the
may be reguired in
illuninate wlth the
specifie following
areas scale of
premises
accordance
lighting
intensity:
- 1 0
Filed 10/09/12 Page 12 of 17
ILLi}{INATION Open areas spectators Stage Areas Parking & overnight areas areas reserved for
WATTS/_SQ. rr. 0,50 5.00 4,25 1.00

- Every the licensee to authorized remain on
Restroom & Concession (j)
OVERNIGHT CAl,lPIlre FACILITIES to the allow persons who attend shall
festival
premises
overnight areas that
provide
camping facil-ities of Nevada parks recreatincidental
and overnight Revised
meet the special travel
requirements
Statutes
and/or
occupancy trailer trailer trailer parks, parks,
and campgrorrnds ineluding ional trailer parks, and tent
temporary camps.
camping areas Such areas County prior
and facilities Officer issuance
shal-l- be approved and the of Sheriff of
by the County
Health to the
Pershing
any license. upon to post bond in of favor an inof the
(k)
BO_NDS Any licensee demnity County bond and/or in connection by this
may be called a performance with the
operation
a festival, by the Art
Bonds required District applicant
Chapter to the to
must be approved issuance of
Attorney
prior
a license. bond written do business Insurance,
rnay be reqpired bonding of
submit
a surety to of
by a corporate in the State
company authorized Department Board of
Nevada by the
in
a penal
amount determined indemnify
by the the
County
Commissioners. lts agents,
Said bond shal-l officers,
Cor:nty of and the
Pershing, Board and all arising of
servants of
and employees said
County inof, or
Conmissioners jury in
Cotrnty againstany whatsoever festlval, both
loss, out
and damage of any tray connected loss, injury
any nature with,
said
and shall person
indemnify
against
and damage to
and property.
1 1 II
Filed 10/09/12 Page 13 of 17
Additionall-y, a corporate
the surety
County may demand that bond written to do business Pershing site
applicant
provide
by a corPorate in the State
bonding of Nevada'
company authorized indennifying property itated other shall the
Cor.:nty of the
and the for
owners of necessor bond
adjoining for cleaning from,
festival
any costs
up and/or in,
removing the
debris,
trash, Said of
waste be in
and around
premises. Board
an amount determlned
by the
County
Commissioners.
(1)
FIRE PROTECTION ' expense adequate
Every fire
licensee
shall-
provide
at
his
own fire
protection
as determined having jurisdiction
by the
protection the other event fire
agency or agencies is to be conducted. shaLl
where and such fire by
Flanrnable
vegetation
hazards
be removed in Fire
a manner and in First aid
guantity
as determined
by the shatl
Chief(s).
extingulshment the Fire (m)
equipment
be provided
as directed
Chief(s). shall be reguired of the to
FINANCIAL STATEMENTS Each licensee provide abil-ity a financial of the of statement and/or to give
assurance
promoters the permit.
applicants
to meet the
conditions (n)
coMMUNIcATIoN - Licensee communication ications system for
shal-l public
be reguired use where
to
establish
ordinarY
commun-
are not
available. may be required receiving to meet to conduct to
(o)
MISCELLANEOUS - Any applieant any other a festival protect condition which is prior to
a license
reasonably welfare
calculated
as necessary of l-ocal
the health, attending
and property
residents
and persons SECTION 9. After holding
a festival. I{OTICE OF NEN!{L the Board of the County following:
GROUNDSFOR DENIAL OF LICENSE: the required of publ-ic if hearing, lt finds
Cornmissioners may deny issuance
license
any of
Filed 10/09/12 Page 14 of 17
(r)
Q)
That
the
appl-icant
fails
to meet the
conditions
imposed by the within That the proposed
ordinance. willbe conducted the health, ln a zoning' by lal'rs
festival not
manner and/or fire the of
location
meeting
or building ordinances the State of of
and safety the County
standards of
establ-ished or the
Pershing
Nevada. has knowingly statement license, the his or made a false, of material in any other fact misin
(3)
That
the
applicant or
leading the
frauduLent for to
application pursuant
document
required
within
ordinance. agent' or any Person as Partner, or manager, being of a
(4)
That
the
applicant, or
employee, with
connected director,
associated
the applicant associate' of festlval
officer,
stoekhoLder,
has previously applled public for
conducted resulted
-the tyPe in the
which
creation
or private the applicant,
nuisance. his empl-oyee, agent as partnerr or any Person
(s)
That
associated officer, convicted final (a)
r,tith applieant, stockholderr in a court of: involving
director,
associate, of competent
or manager has been Jurisdiction' by
judgment an offense tlon
the of
presentation,
exhibi-
or performance picture or invotving involving person of
an obscene production, or of sell-ing obscene
motion matter; (b) (c)
or placel
an offense an offense upon the
lewd
eonduct;
or and violenee
the use of another; or
force
(d) (e) Where the
an offense
involving
misconduct
with
children
or
a fe1-ony offense. is denied, the Clerk of the Board of
application
- 1 3
Filed 10/09/12 Page 15 of 17
County Commissioners within fourteen of the (14)
shall
mail
to
the
applicant which
written notice
notiee
of
denial a
days of the
said
action,
shal-I include
statement
reasons
applicatlon SECTION 10.
was denied. COMPLAINTS with the Clerk of the Board of to
Any person County Commissioners conduct The Clerk for hearing a hearing of the in
may file
a compl-aint
or may petition the
the Board of of the
County Commissioners license notiee 5. of
concerning Board of
revocation
any licensee. petition
County with
Commissioners provisions
shall of
the
accordance
the
Section
SECTION 1].. REVOCATIONOF LICENSE The Board of have the power to revoke County Commissioners or to of the County of Pershing shall
any f.icense, when the fails, the his
revoke
and reinstate
any license
upon suitable
conditions,
following negLects fee
causes exist: or refuses Lo pay to the
(1)
The licensee County Auditor
preseribed
by the within fails,
ordinarree. or
Q)
The lieensee, refuses pursuant to to
employee or any or all-
agent, of the
neglects
fulfil-l-
conditions
irnposed
the within allows violates of the
ordinance. festival to be conducted in a
(3)
The licensee manner which by the of the
any 1-aw or the
regulation Pershing
established or the laws
ordinances State of
County of
Nevada. the festivalto allows while be conducted any person under the in to a remain
G)
The licensee disorderly on the of
allows
manner or knowingly of the festival
premises
influence drug. any
intoxicating
liquor, his
or any narcotic agent, is
or dangerous convicted 9. of
(s)
The licensee, of the offenses
employee or
enumerated under
Section
SECTION l-2, Notice licensee shaLl of
NOTICE OF INTEM to to revoke
TO REVOKE: HEARING shallof be given the the the and the County re-
intent
any license The Clerk setting
be entitled shall
a hearing. notice,
Board of causes for
Cor.mty Commissioners vocation and shal-l
give the
forth
state
time
and pl-ace at which
matter
of
revocation
- L 4 -
Filed 10/09/12 Page 16 of 17
will
be heard
before
the
Board of
County Commissioners not l_ater than County
of ten
the
County
of
Pershing. to the date
Said notice set for
shall
be mailed
(l-0) days prior shall
hearing. parties
The Board of and may revoke l_1.
Cornrnissioners only for
hear all
interested
a license
one or
more causes enumerated by Section SECTION 13. It corporation with said shall VIOLATIONS; for
RS{EDIES OF COUITI'Iy any person or persons, firm or firms, associated
be unlawful
or corporations, licensee, (1) to
licensee, the
employee, following:
agent or person
do any of
Conduct or operate llcense to do so. to
a festival
without
first
procuring
(2)
Sell- tickets been obtained.
a festival
without
a l-icense
first
having
(3)
Operate, as to
conduct
or
camy
on any festival nuisance, said place
in
sueh a manner
cteate
a public
or private
(4)
Exhibit, cbscene,
show or indecent,
conduct within vulgar
of
festival
any
or lewd exhibltion,
show, play,
(s) il:-'il:"":: ::.,:"::,,:""':,'::T,"::":,'::::::":'

Eo cause or place (6) of create a disturbance by offensive "rry p"i"on intoxlcating to in, or around disorderl_y sell, in or near any festival, allow of conduct. or be in a p1-ace of a is ordinance Knowingly possession festival expressly and under Q) Knowingly use' drug sell, consume, while liquor
except
where such consumption under the the State at terms of of
or possession the within
authorized the l_aws of
Nevada. licensed festival to
allow
any person
the of
or be in in of
possession
any narcotic Statutes
or dangerous in, around,
as defined a place
Nevada Revised the festival. violations
whil-e
or near ,dny of demeanor and shall the
above enumerated
shaLl in the
constitute Pershing
a misCounty
be punishabl-e
by imprisonment
l5
Filed 10/09/12 Page 17 of 17
Jail-
for
a period It is
of
not
less
than
three that
(3) the
nor more than
six
(5) retains for
months.
provided,
however,
County of Pershing right the of civil of
any and all the
civil of
remedies, said
including
the
injunetion
prevention
violations
and for
recovery
money damages
therefor.
SECTION 14.
If validity declared
SEVERABILITY
of other this ordinance are held invalid such inis hereby
any provisions affect
shal-l not to
provisions
and eaeh provision
be severable.
sEcTroNLs.
This its adoption. ordinance
DArE EFFECTIIVE
shall be in full foree and effect from and afte:
Proposed on the Proposed
20th
day of March, Maher. L97O.
L970.
by Conrnissioner
Passed the Vote: Ayes:
20th day of March,
Commissioners:
A. B. Johnson, Robert Maher None None.
Cecil
Campbell,
Nays: Absent:
Commissioners: Commissioners:
/s/ ARTHUR B. JOHNSON Chairman of the Board ATTEST: /s/ CecLl Gerst
County Clerk This Ordinance shall day of April, 1970. be in force and effect
from and after the 10th
- 1 6

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Case 3:12-cv-00435-RCJ-VPC Document 16

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Case No. 3:12-cv-00435

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Jim C. Shirley Pershing County District Attorney

Defendant Shirleys Motion to Dismiss

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POINTS AND AUTHORITIES

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Defendant Shirleys Motion to Dismiss

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Defendant Shirleys Motion to Dismiss

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Black Rock City Failed To Establish An Express Preemption Claim

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Black Rock City Failed To Prove A Conflict Preemption Claim

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Ruthardt, 194 F.3d at 179.

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Dismissal of Counts I and II

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Canatella v. State of California, 304 F.3d 843, 854 (9th Cir.2002).

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