U.S. v. Nye County, Nev.
| Decision Date | 30 October 1996 |
| Docket Number | Nos. CV-S-94-675-PMP (RLH) to CV-S-94-678-PMP (RLH).,No. CV-S-94-656-PMP (RLH).,CV-S-94-656-PMP (RLH).,s. CV-S-94-675-PMP (RLH) to CV-S-94-678-PMP (RLH). |
| Citation | 951 F.Supp. 1502 |
| Parties | UNITED STATES of America, Plaintiff, v. NYE COUNTY, NEVADA; Bernie C. Merlino, Nye County Assessor; Clark County, Nevada; and J.E. Dutton, Clark County Assessor, Defendants. STATE OF NEVADA, ex rel. Arthur F. WEHRMEISTER, District Attorney of Nye County, Nevada, Plaintiff, v. RAYTHEON SERVICES NEVADA, a Delaware corporation, Defendants. STATE OF NEVADA, ex rel. Arthur F. WEHRMEISTER, District Attorney of Nye County, Nevada, Plaintiffs, v. EG & G ENERGY MEASUREMENTS, INC., a Nevada corporation, Defendants. STATE OF NEVADA, ex rel. Arthur F. WEHRMEISTER, District Attorney of Nye County, Nevada, Ronald C. Bain, et al., Plaintiffs, v. WACKENHUT SERVICES, INC., a Florida corporation, Defendants. STATE OF NEVADA, Plaintiff, v. REYNOLDS ELECTRICAL & ENGINEERING, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Loretta C. Argrett, Gerald A. Role, David M. Katinsky, Alan J.J. Swirski, U.S. Department of Justice, Washington, D.C., Kathryn E. Landreth, United States Attorney, Carlos A. Gonzalez, Asst. U.S. Atty., Las Vegas, NV, for Plaintiffs.
Stewart Bell, District Attorney, Zev E. Kaplan, Deputy District Attorney, Las Vegas, NV, for Clark County & Dutton.
Arthur F. Wehrmeister, Rachel H. Nicholson, Nye County Deputy District Attorneys, Tonopah, NV, for Merlino and Nye County.
Jerald L. Wilkerson, Las Vegas, NV, for Nye County.
Booker T. Evans, Dawson & Associates, Las Vegas, NV, for Wackenhut Services, Inc., Raytheon Services, and EG & G Energy.
Presently before the Court is Plaintiff United States' Motion for Partial Summary Judgment (# 28) filed on June 14, 1996. Defendants and Third-Party Plaintiffs Reynolds Electrical and Engineering ("Reynolds"), EG & G Energy Measurements, Inc. ("EG & G"), Raytheon Services Nevada ("Raytheon"), and Wackenhut Services, Inc. ("Wackenhut") joined (# 30) in the Motion for Partial Summary Judgment against Nye County on July 13, 1996. Defendant Nye County (# 33) and Defendants Clark County and Jean Dutton (# 34) ("Defendants") filed Oppositions to the United States' Motion for Partial Summary Judgment on July 12, 1996. On July 29, 1996, Defendant Nye County filed a request for Oral Argument (# 40).
Plaintiff United States filed a Reply (# 41) to Clark County's Opposition Brief on August 2, 1996, and a Reply (# 42) to Defendant Nye County's Opposition on August 5, 1996. On August 19, 1996, Defendants and Third-Party Plaintiffs Reynolds, EG & G, Raytheon, and Wackenhut joined (# 48) in the United States' Reply to Defendant Nye County's Opposition Brief.
Defendant Clark County and Jean Dutton filed a Motion for Summary Judgment (# 27) on June 13, 1996. The United States filed an Opposition (# 31) to Clark County's Motion for Summary Judgment on July 26, 1996. Clark County filed a Reply (# 39) to the United States' Opposition brief on July 26, 1996.
On August 7, 1996, the United States filed a Notice of Withdrawal of Prospective Claims against Clark County and J.E. Dutton (# 45). This notice sought to withdraw claims against Clark County and J.E. Dutton to the extent that the complaint could be read to request declaratory and injunctive relief. Clark County filed an Opposition to the Notice to Withdrawal (# 47) on August 15, 1996. On September 13, 1996, this Court entered an Order denying the United States' Notice of Withdrawal, and set a September 30, 1996, deadline for any Motion to Amend the United States' complaint.
On September 23, 1996, the United States filed a Motion for Leave to Amend its complaint (# 50). Defendants Clark County and J.E. Dutton filed an Opposition (# 54) to the United States' Motion to Amend on October 3, 1996. The United States filed a reply (# 62) to this opposition on October 10, 1996. By separate Order the Court has this date GRANTED the United States' Motion to Amend (# 50). The United States' amended complaint (# 51) seeks a refund of taxes paid to Nye and Clark Counties pursuant to former Nevada Revised Statutes sections 361.157 and 361.159, and declaratory and injunctive relief against Nye County as to the collection of taxes under current sections 361.157 and 361.159.
On October 15, 1996, the Court conducted a hearing regarding Plaintiff United States' Motion for Summary Judgment (# 28).
This is a consolidated action that began with United States v. Nye County, Nevada; Bernie C. Merlino, Nye County Assessor; Clark County, Nevada; and J.E. Dutton, Clark County Assessor, Case No. CV-S-94-0656-PMP, filed July 26, 1994, in which the United States sought declaratory and injunctive relief against the assessment and collection of real and personal property taxes under Nevada Revised Statutes sections 361.157 and 361.1591 on the alleged leasehold interest, beneficial or possessory interest, and/or beneficial use interest of United States' property by Reynolds, EG & G, Raytheon, and Wackenhut2. The United States also sought a refund of taxes paid by the Government Contractors and Fenix & Scisson of Nevada ("FSN") and Holmes & Narver, Inc. ("H & N") from 1988-94 pursuant to sections 361.157 and 361.159, along with prejudgment interest.
This case was consolidated with four others in which the State of Nevada, through Arthur R. Wehrmeister, District Attorney for Nye County Nevada, sought to collect taxes due under sections 361.157 and 361.159 from Raytheon, EG & G, Wackenhut, and Reynolds.
The Government Contractors are under contract with the Department of Energy ("DOE") to manage, operate and support various aspects of DOE facilities at the Nevada Test Site ("NTS") in Nye County and the Nuclear Testing Program in Clark County. From 1988-92, the DOE reimbursed its contractors for taxes paid to Nye County pursuant to former sections 361.157 and 361.159 in the amount of $4,095,237.44 and to Clark County in the amount of $1,563,417.02.
Former section 361.159 taxed the leasehold interest, possessory interest, beneficial interest or beneficial use by a lessee or user of personal property that is otherwise exempt from taxation. Section 361.157 taxes the similar use of exempt real estate. In 1991 the Ninth Circuit held former section 361.159 unconstitutional as a direct ad valorem tax upon United States' property, since it subjected a user or lessee to taxation to the same extent as the owner of the underlying property. The Nevada State Legislature repealed former sections 361.157 and 361.159, and enacted the current statutes, which limit taxation by segregating and identifying the portion of the property and the percentage of time during the fiscal year the property was leased by the lessee or used by the user. See Nev.Rev. Statutes sections 361.157 and 361.159 subsections (1)(a) and (b). Neither the Government Contractors nor the United States paid these taxes under protest as required by section 361.420, or appealed to the State Board of Equalization under section 361.360, or filed for a refund within the three month statute of limitation under sections 361.420(3).
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56.
The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983). Once the movant's burden is met by presenting evidence which, if uncontroverted, would entitle the movant to a directed verdict at trial, the burden then shifts to the respondent to set forth specific facts demonstrating that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). If the factual context makes the respondent's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); California Architectural Bldg. Prods, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988).
If the party seeking summary judgment meets this burden, then summary judgment will be granted unless there is significant probative evidence tending to support the opponent's legal theory. First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968), reh'g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); Commodity Futures Trading Com. v. Savage, 611 F.2d 270 (9th Cir.1979). Parties seeking to defeat summary judgment cannot stand on their pleadings once the movant has submitted affidavits or other similar materials. Affidavits that do not affirmatively demonstrate personal knowledge are insufficient. British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979), reh'g denied, 441 U.S. 968, 99 S.Ct. 2420, 60 L.Ed.2d 1074 (1979). Likewise, "legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment." Id.
A material issue of fact is one that affects the outcome of the litigation and requires a...
To continue reading
Request your trial