Barngrover v. Fourth Judicial Dist. Court of State ex rel. County of Elko

• Decision Date: 07 June 1999
• Docket Number: No. 32433,32433
• Citation: 979 P.2d 216
• Parties: Larry BARNGROVER, Duane Erickson, Kenneth Gray and William Molini, Petitioners, v. The FOURTH JUDICIAL DISTRICT COURT of the STATE OF NEVADA, in and for the COUNTY OF ELKO, and the Honorable J. Michael Memeo, District Judge, Respondents, and The Elko County Grand Jury, Real Party In Interest.
• Court: Nevada Supreme Court

Page 216

979 P.2d 216

Larry BARNGROVER, Duane Erickson, Kenneth Gray and William Molini, Petitioners, v. The FOURTH JUDICIAL DISTRICT COURT of the STATE OF NEVADA in and for the COUNTY OF ELKO, and the Honorable J. Michael Memeo, District Judge, Respondents and The Elko County Grand Jury, Real Party In Interest.

No. 32433.

Supreme Court of Nevada.

June 7, 1999.

Frankie Sue Del Papa, Attorney General and Paul G. Taggart, Deputy Attorney General, Carson City, for Petitioners.

Gary D. Woodbury, District Attorney, Elko County, for Respondents.

Before the Court En Banc.

OPINION

PER CURIAM.

FACTS

In 1991, Independence Mining Company ("IMC") applied for a permit from the United States Forest Service ("USFS") to expand its gold mining activities on public lands in the Independence Mountain range. As a part of the permit procedure, the Nevada Division of Wildlife ("NDOW") worked with the Forest Service to determine whether or not the requested use would negatively impact wildlife in the area. Where a negative impact is anticipated, the applicant is required to pay the costs of mitigating the damage caused by the applicant's use of the property. A dispute arose between IMC, NDOW and USFS over the amount of money IMC would pay in mitigation. The entities also disagreed about the manner in which NDOW and USFS calculated the damages as well as the impact of the mining operation on the mule deer habitat which was located in the proposed mining area.

Petitioners Larry Barngrover ("Barngrover"), Duane Erickson ("Erickson"), Kenneth Gray ("Gray"), and William Molini ("Molini") are the employees of NDOW who were involved in the determination of damages and/or the negotiations with IMC.

The discussions regarding mitigation damages occurred in 1991 and 1992. IMC had informed NDOW and USFS that the permit was essential to the continued operation of IMC's business as IMC was close to exhausting its resources at its existing sites. IMC was concerned that a substantial loss of revenue might result if it could not resolve the mitigation issue.

After the protracted negotiations failed to result in an agreement, the parties were scheduled to proceed with mandatory arbitration. However, rather than arbitrate the issue, IMC and NDOW decided to agree upon a settlement which required that IMC pay the State of Nevada $500,000 in mitigation costs. The money would be placed in a fund to be administered by NDOW, and NDOW would be responsible for the mitigation plan management. The settlement was approved by the Nevada Legislature, and IMC made the last payment towards the $500,000 in July of 1994.

On September 18, 1995, a petition was filed with the Fourth Judicial District Court pursuant to NRS 6.130(1). The petition requested that the court summon a grand jury to investigate the actions of federal and state officials with regard to the management of public lands located in Elko County. ¹ The IMC transaction was one of the issues which prompted the petition. IMC, however, had never complained about the transaction. The petition was granted, and on February 7, 1996, a grand jury was impaneled.

The grand jury met for about one year. With respect to the IMC mitigation settlement, it heard testimony from numerous witnesses, including petitioners Barngrover, Erickson and Gray. Deputy Attorney General Wayne Howle, counsel for NDOW, asked District Attorney Gary Woodbury to indicate whether or not employees of NDOW were targets of a criminal investigation pursuant to NRS 172.241(2) and Sheriff of Humboldt County v. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989). Woodbury told Howle that the petitioners were not targets. Therefore, Barngrover, Erickson and Gray testified under the assumption that the grand jury was not seeking to indict any NDOW employee, but was on a fact finding mission.

After concluding its hearings on the IMC transaction, the grand jury believed that petitioners and members of the USFS had somehow conspired to coerce IMC into an unfair settlement. The grand jury felt the actions of these governmental entities violated NRS 197.200, oppression under the color of office, a gross misdemeanor. ²

On January 9, 1997, the grand jury issued a document called "Report of Investigation." No indictment or presentment accompanied the report. The report was critical of the manner in which the IMC issue had been resolved. The form of the report suggested it was submitted under NRS 172.267, but it also contained language arguably in violation of subsections 2(a) and 2(c) of that act.

Specifically, under the findings portion of the report, the grand jury listed petitioners by name and indicated what role the grand jury believed a given individual had played in the IMC transaction. Then, in the section entitled "Recommendations," the grand jury concluded that indictable criminal activity had taken place which, but for the fact that the statute of limitations had passed on the alleged violations, would have resulted in a recommendation for prosecution. The report then stated that "employees of NDOW deliberately and maliciously withheld and delayed issuance of permits to which IMC was entitled in order to force IMC to pay sums of money for habitat development" beyond that which "IMC was legally or morally obligated to pay."

The "Report of Investigation" was sent to the judges of the Fourth Judicial District Court on January 10, 1997. A cover letter from District Attorney Woodbury was attached. The letter stated:

I want to call your attention to the fact that the report names several individuals, and indicates that indictable activity was found, and but for the passage of the statute of limitations, an indictment would issue.

Pursuant to NRS 172.267, there are several subsections which appear to be safeguards against unfair accusations against named individuals. The Grand Jury is specifically requesting that you treat the report as a presentment pursuant to NRS 172.267(2)(c).

I am specifically requesting you to find, pursuant to NRS 172.285, that a warrant cannot issue because of the passage of the statute of limitations.

Upon receipt of the letter and the report, the district court noted that the district attorney had confused the role of the grand jury in this instance. The report could not be treated as a "presentment" as requested in the letter, and the report, standing alone, did not comply with NRS 172.267. By letter of February 3, 1997, the district court requested that the grand jury clarify its position. The district court stated:

I would request that the Grand Jury clarify its action by either returning a presentment(s) in a separate document(s) suitable for filing with the Court that specifically names the individual to be charged along with the specific criminal statute that has been violated, or otherwise informing the Court as to its intent.

If the Grand Jury returns presentments ... the Court will immediately set a hearing for the return of the presentment(s) in open court ....

If the Grand Jury does not accompany the report with a presentment(s), the Court will afford those individuals named but not formally accused the opportunity for expungement as required by NRS 172.271 ....

This, in effect, advised the grand jury that they could either press charges or amend the report so that it met the standards of NRS 172.267.

Although the report and the letter of the district attorney both stated that criminal charges would not be pursued due to the expiration of the statute of limitations, the grand jury still went forward with a presentment. On the day the presentment was filed, February 13, 1997, the district attorney asked the district court not to issue a bench warrant and stated the case could not proceed as any alleged criminal charges were barred by the statute of limitations. The district attorney said the alleged offense "does not constitute an action triable within Elko County." The district court took the matter under advisement and requested the district attorney to file points and authorities in support of his position regarding the statute of limitations issue. After reviewing the brief of the district attorney's office, the district court issued, on March 10, 1997, an order stating no further action would be taken on the presentment.

Petitioners were never served with a copy of the presentment or the report. They were informed of the proceedings by reading accounts of the matter in various newspapers. On May 15, 1997, after learning of the existence of the presentment, petitioners filed a motion for an order directing the grand jury court reporter to certify and file a transcript of the grand jury proceedings as required by NRS 172.225. The district court granted the motion, but limited the order to "all witnesses relied upon by the grand jury in returning the Presentment." Petitioners requested the district court expand its order to include all of the grand jury proceedings by a motion filed on August 28, 1997. This motion was opposed by the district attorney's office and denied by the district court on December 9, 1997.

Petitioners then filed a motion to expunge the presentment and grand jury report, as well as a motion for reconsideration of the district court's denial of additional transcripts. These motions were denied on March 3, 1998.

Petitioners filed a direct appeal with this court. Respondents moved to dismiss the appeal on jurisdictional grounds. While the motion was pending, petitioners filed the instant extraordinary writ action. ³

DISCUSSION

The decision to entertain a petition for a writ lies within the discretion of this court. See Barnes v. District Court, 103 Nev. 679, 682, 748 P.2d 483, 485 (1987). A writ of mandamus is an extraordinary remedy and may be available to prevent irreparable harm. See Clark County Liquor v. Clark, 102 Nev. 654, 659, 730 P.2d 443, 447 (1986). The writ is issued to "compel the performance of an act which the law especially enjoins as a duty" and...