Nevada Public Land Access Coalition, Inc. v. Humboldt County Bd. of County Com'rs

• Decision Date: 25 May 1995
• Docket Number: No. 26099,26099
• Citation: 895 P.2d 640,111 Nev. 749
• Parties: NEVADA PUBLIC LAND ACCESS COALITION, INC.; Helen Leveille, President of Nevada Public Land Access Coalition, Inc., Appellants, v. HUMBOLDT COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.
• Court: Nevada Supreme Court

Page 640

895 P.2d 640

111 Nev. 749

NEVADA PUBLIC LAND ACCESS COALITION, INC.; Helen Leveille, President of Nevada Public Land Access Coalition, Inc., Appellants, v. HUMBOLDT COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

No. 26099.

Supreme Court of Nevada.

May 25, 1995.

Paul A. Richards, Reno, for appellants.

R. Michael McCormick, Dist. Atty., Humboldt County, for respondent.

OPINION

YOUNG, Justice:

Frenchy Montero blocked off the Leonard Creek Road ("the Road"), which runs through his property and into public land in Humboldt County. Appellants Nevada Public Land Access Coalition, Inc.; Helen Leveille, President of Nevada Public Land Access Coalition, Inc. ("the Coalition"), sought to have respondent Humboldt County Board of County Commissioners ("the Board") open the Road pursuant to NRS 405.195. The Board conducted a hearing on the issue, during which a number of witnesses testified. These witnesses made various claims, many of which were unsubstantiated and conflicting, concerning when, how and why the Road was constructed. Evidence was submitted concerning the ownership of the surrounding land in the mid- to late-nineteenth century. At the close of the hearing, the Board declared unanimously that it did not have enough information to act pursuant to NRS 405.195.

The Coalition sought a rehearing, claiming that evidence obtained after the hearing proved that the Road was public. This evidence consisted mainly of deeds and maps dating from the early twentieth century. The Board denied the Coalition's request, noting that the new evidence did not change its original declaration.

The district court refused to issue a writ of certiorari or mandate compelling the Board to declare the Road public. The district court concluded that the Board did not exceed its jurisdiction and the Coalition could pursue a remedy by filing a complaint in district court. The Coalition appeals the district court's order.

The question presented to this court is not whether the Leonard Creek Road is a public road. Rather, our inquiry is the same as that of the district court when it determined whether to issue a writ of certiorari or mandate, that is, whether substantial evidence supports the Board's refusal to declare the Road public pursuant to the narrow criteria of NRS 405.195. See Nova Horizon v. City Council, Reno, 105 Nev. 92, 94, 769 P.2d 721, 722 (1989).

A petition for a writ of certiorari is properly granted when (1) an inferior tribunal has exceeded its jurisdiction; (2) no means of appeal exists; (3) and no plain, speedy, and adequate remedy at law is available. NRS 34.020(2). All three of these conditions must exist before a writ may be issued. Schumacher v. First Judicial District Court, 77 Nev. 408, 410, 365 P.2d 646, 647 (1961). An analysis of jurisdiction does not involve considering whether the Board's decision was correct. See Goicoechea v. Fourth Judicial District Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980).

Like a writ of certiorari, a writ of mandate may not be issued when a plain, speedy, and adequate remedy at law is available. County of Washoe v. City of Reno, 77 Nev. 152, 155, 360 P.2d 602, 603 (1961). Moreover, a writ of mandate cannot be used to alter the determination of a subordinate body with respect to a finding of fact. See Douglas Co. Board v. Pederson, 78 Nev. 106, 108, 369 P.2d 669, 671 (1962).

The Board determined that the facts presented at the hearing were insufficient to allow it to declare the Road public pursuant to NRS 405.195. This statute, amended substantially in 1993, requires a board of county commissioners to hold public hearings to determine if a road may be deemed public when five or more residents of Nevada petition for such a hearing. See NRS 405.195(1). The county commissioners may declare a road public pursuant to this statute only if a road was constructed on unappropriated, unreserved land by mechanical means and was accepted either by the government (state or local) for dedication as a public road or by use as access to mines or other private property. See NRS 405.195(2). If the county commissioners find that these requirements are met, then the statute presumes to grant broad authority to the county commissioners to open or close the road, depending on a number of other factors. See NRS 405.195(3).

We note that even though the Board held a hearing pursuant to NRS 405.195, the Board essentially left the status quo unaltered. For purposes of this appeal, we conclude only that the Board did not exceed its jurisdiction in refusing, pursuant to the narrow criteria of NRS 405.195, to declare the Road to be public based on the conflicting and unsubstantiated claims made at the hearing. The documents which prompted the Coalition to request a rehearing do not alter this conclusion.

Because the Board did not exceed its jurisdiction in making its findings, we need go no further in disposing of this appeal. We must emphasize again, however, that the Board's determination is not dispositive of the question of whether the Road should be open to the public. The order of the district court is affirmed.

STEFFEN, C.J., and SHEARING and ROSE, JJ., concur.

SPRINGER, Justice, concurring:

I concur with the court's affirmance of the district court's judgment denying a petition for writ of certiorari, but for reasons entirely different from those expressed in the majority opinion.

I do not believe that petitioners are entitled to extraordinary relief even though it is clear to me that the road in question here is a "public road." There is no doubt, based on this record, that construction of the road "by mechanical means" took place while the land was unappropriated, unreserved public land and that it was, as required by the statute "used by the public" and also "[a]ccepted by use as access to a mining claim." ¹

To my mind the County Board abused its discretion in refusing to declare the road to be a public road, and, under ordinary circumstances, a writ of certiorari would be in order. ² In this case, however, I agree with the district court that a writ should not issue and that the matter should be disposed of, as suggested by the district court, "by filing a complaint for relief in the District Court." I say this because in my opinion the county does not...