Clark County, Nevada v. City Of North Las Vegas
Filing
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ORDER Granting in Part and Denying in Part 5 Emergency Motion to Remand to State Court. Signed by Judge Philip M. Pro on 8/9/11. (Copies have been distributed pursuant to the NEF; Certified copy of Order and Docket Sheet to state court - ASB)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CLARK COUNTY, NEVADA,
Plaintiff,
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v.
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CITY OF NORTH LAS VEGAS,
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Defendant.
2:11-CV-01012-PMP-GWF
ORDER
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Presently before the Court is Plaintiff Clark County, Nevada’s Emergency
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Motion to Remand to State Court, With Fees and Costs (Doc. #5), filed on June 22, 2011.
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Defendant City of North Las Vegas filed an Opposition (Doc. #9) on July 11, 2011.
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Plaintiff Clark County, Nevada filed a Reply (Doc. #10) on July 21, 2011.
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I. BACKGROUND
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This suit arises from a dispute between Plaintiff Clark County, Nevada
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(“County”), a political subdivision of the State of Nevada, and Defendant City of North Las
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Vegas (“City”), a municipal corporation in Nevada, over City’s Water Reclamation Facility
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(“WRF”), which City recently constructed on property owned by the United States of
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America. The City and the County dispute whether the City must obtain any further
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approval from the County to discharge treated wastewater (“effluent”) from the WRF into
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the Range Wash, which ultimately flows into the Sloan Channel. The Range Wash is
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located on federal property at Nellis Air Force Base. (Mem. of P.O.A. in Support of
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Subject Matter Jurisdiction (Doc. #30 in 2:11-CV-00944-PMP-PAL) [“Mem. re:
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Jurisdiction”], Ex. F at 2; United States’ Resp. to the City of N. Las Vegas’ Request for
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Jurisdictional Disc. & Evid. Hrg. (Doc. #57 in 2:11-CV-00944-PMP-PAL), Ex. 1.) Water
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in the Range Wash flows into the Sloan Channel, which in turn flows into the Las Vegas
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Wash. (Mem. re: Jurisdiction, Ex. F at 2.) County owns, by fee or easement, Sloan
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Channel and the improvements thereon. (Mot. TRO (Doc. #8 in 2:11-CV-00944-PMP-
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PAL), Ex. A at 1.)
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In 1984, the United States of America, through the Secretary of the Air Force,
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granted to County “an easement for a right-of-way for the construction, operation and
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maintenance of a flood control channel, known as the Sloan Channel and related facilities
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thereto, . . . over, across, in and upon land of the United States,” at Nellis Air Force Base.
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(Notice of Removal (Doc. #1), Ex. B at 1.) The easement is subject to various conditions,
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including that the installation, operation, and maintenance of the channel is “under the
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general supervision and subject to the approval of” a designated Air Force official, and is
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“subject to such rules and regulations as the said officer may from time to time prescribe.”
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(Id. at 2.) The United States also “reserve[d] to itself the right to construct, use and
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maintain across, over, and/or under the right of way hereby granted, electric transmission,
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telephone, telegraph, water, gas, gasoline, oil, and sewer lines, and other facilities, in such
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manner as not to create any unreasonable interference with the use of the right of way
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herein granted.” (Id.) The United States also reserved the right to require County to
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remove or relocate the channel should the United States determine it needed the land or
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determine that the existence of the channel was detrimental to governmental activities. (Id.)
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In October 2008, City entered into an Enhanced Use Leasing Lease Agreement
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(“EUL”) with the United States Department of the Air Force. (Notice of Removal, Ex. C.)
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Pursuant to the EUL, the United States leased to City for a term of fifty years a section of
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property located on Nellis Air Force Base. (Id. at 5.) The purpose of the lease is “for
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construction and operation of a wastewater treatment facility and for all other related lawful
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municipal purposes.” (Id. at 10.) The EUL leases property identified by Exhibit A to the
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EUL, “TOGETHER WITH the right to access to an area outside of the Project for
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[purposes] of constructing and maintaining a discharge line from the Facility to the
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discharge channel pursuant to the terms of the discharge easement as more specifically
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described in Exhibit A-1 (the ‘Discharge Easement’).” (Id. at 5.)
Exhibit A-1 states that it is a “land description” which “describes a portion of
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assessor’s parcel number 140-16-801-001 designated as a ‘public drainage and utility
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easement,’ generally located within Nellis Air Force Base, north of Carey Avenue and East
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of a projection of Christy Lane, Clark County, Nevada.” (Notice of Removal, Ex. D.)
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Exhibit A-1 then contains a land description and is followed by several schematics showing
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the subject area with a proposed 48” storm drain and proposed twin 48” effluent lines. (Id.)
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Each page of schematics is labeled “Water Reclamation Facility Public Drainage and Utility
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Easement.” (Id.) The final page of Exhibit A-1 depicts the “public drainage and utility
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easement” as extending into the middle of the Range Wash. (Id.)
City broke ground on the WRF in November 2008. (Mem. re: Jurisdiction, Ex. F
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at 1.) In late 2010, staff of City and County prepared a proposed maintenance agreement
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for the Range Wash and Sloan Channel in relation to City’s soon-to-be operational WRF.
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(Id., Ex. F at 4, Exs. G, I.) County’s Board of Commissioners held several meetings on the
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issue but did not adopt the proposed inter-local maintenance agreement and did not approve
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an encroachment permit which County contends City must obtain to discharge effluent into
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the County’s improvements on the Range Wash and in Sloan Channel. (Id., Ex. F at 4-7,
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Exs. G, I.)
Efforts at resolving the issue politically so far have been unsuccessful. (Mot.
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TRO, Exs. J, K; Mem. re: Jurisdiction, Exs. F, G, I.) On June 8, 2011, City sent County a
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letter putting County “on notice of [City’s] intent to immediately begin discharging effluent
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from its WRF into the Sloan Channel . . . .” (Mot. TRO, Ex. K at 3.)
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The very next day, the City began discharging effluent into the Range Wash.
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(Mem. re: Jurisdiction, Ex. F at 7.) That same day, City filed an action in this Court for
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declaratory relief. (Compl. (Doc. #1 in 2:11-CV-00944-PMP-PAL).) County thereafter
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counterclaimed, asserting state law claims for trespass, nuisance, and declaratory relief.
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(Ans. & Countercl. (Doc. #7 in 2:11-CV-00944-PMP-PAL).) County also moved for a
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temporary restraining order to enjoin City from further discharging effluent into the Range
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Wash and Sloan Channel. (Mot. TRO.) The Court set the matter for hearing, but prior to
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the hearing, County filed a Suggestion That Subject Matter Jurisdiction is Wanting (Doc.
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#13 in 2:11-CV-00944-PMP-PAL), in which County suggested that this Court lacked
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subject matter jurisdiction under the Quiet Title Act because no dispute over title exists as
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between City and the United States.
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Prior to this Court’s hearing on the motion for temporary restraining order in the
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federally-filed action, County filed its own lawsuit against City in Nevada state court.
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(Notice of Removal, Ex. A.) County alleges City was required to apply for a permit to
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construct off-site improvements, apply for and obtain zoning and use permits, and obtain
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County’s written permission to use the County-owned Range Wash and Sloan Channel to
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drain water, but failed to obtain any of these approvals. (Id.) County asserts claims against
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City for trespass and public nuisance, and seeks declaratory and injunctive relief. (Id.)
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The day after County filed suit in state court, this Court held a hearing on
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County’s motion for a temporary restraining order in the federally-filed action. (Mins. of
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Proceedings (Doc. #18 in 2:11-CV-00944-PMP-PAL).) At the time of the hearing, the
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United States had not been served, and it did not appear at the hearing. (Tr. (Doc. #29 in
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2:11-CV-00944-PMP-PAL) at 5, 8, 14.) At the hearing, the Court expressed its doubt that
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subject matter jurisdiction existed under the Quiet Title Act. (Id. at 5, 8, 26.) The Court
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permitted County to withdraw its motion for temporary restraining order, and the Court
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ordered the parties to brief the jurisdictional question. (Id. at 29-32.) In the meantime,
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Defendant City removed the state court action to this Court. (Notice of Removal.)
Plaintiff County now moves to remand, arguing no federal question exists to
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support subject matter jurisdiction in this action. County argues it pled only state law
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claims and its Complaint raises no federal questions. County therefore requests the Court
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remand the action to state court, and to award it fees for the cost of removal.
City opposes remand, arguing County artfully has pled its Complaint, failing to
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mention substantial questions of federal law, including the Quiet Title Act, the Clean Water
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Act, and the Property Clause of the United States Constitution. Specifically, City argues
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that because County claims ownership of the Range Wash, when in fact it holds only an
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easement from the United States, County’s request for a declaration that no other right
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interferes with the County’s property rights necessarily invokes the Quiet Title Act. City
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argues the Complaint seeks to quiet title to the Range Wash in the County, a form of relief
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that requires exclusive original jurisdiction in this Court because the United States claims
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an interest in the Range Wash.
City also argues that County’s Complaint is artfully pled to avoid stating a claim
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for a citizen suit under the Clean Water Act, as demonstrated by County’s extensive
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reference to the Clean Water Act in its Complaint. City further contends that County’s
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Complaint raises substantial questions of federal law under the Clean Water Act, because
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City contends that once County approved the areawide waste management plan, which
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contemplated WRF discharging effluent into the Range Wash and Sloan Channel, that plan
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had the force of law. Finally, City argues the Complaint raises substantial questions under
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the Property Clause of the United States Constitution because County claims that it can
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require City to obtain permits or approvals for City’s activities on federal land. City
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contends it has the United States’ approval to conduct those activities on federal property,
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and this raises a substantial question of federal law.
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II. DISCUSSION
Under 28 U.S.C. § 1441(a), a defendant may remove to federal court “any civil
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action brought in a State court of which the district courts of the United States have original
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jurisdiction.” Federal courts “strictly construe the removal statute against removal
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jurisdiction,” and resolve all doubts regarding jurisdiction in favor of remand. Provincial
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Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009);
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Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). The
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removing defendant bears the burden of establishing that removal is appropriate. Provincial
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Gov’t of Marinduque, 582 F.3d at 1087.
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United States district courts are courts of limited jurisdiction. Williams v. United
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Airlines, Inc., 500 F.3d 1019, 1022 (9th Cir. 2007). Where diversity of citizenship between
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the parties does not exist, as in this case, a federal question must be present; that is, the
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action must “aris[e] under the Constitution, laws, or treaties of the United States.” 28
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U.S.C. § 1331. A case arises under federal law if the plaintiff’s complaint establishes
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“either (1) that federal law creates the cause of action or (2) that the plaintiff’s asserted right
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to relief depends on the resolution of a substantial question of federal law.” Peabody Coal
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Co. v. Navajo Nation, 373 F.3d 945, 949 (9th Cir. 2004).
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The presence or absence of a federal question is determined by the well-pleaded
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complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Under the
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well-pleaded complaint rule, the plaintiff is the master of his or her complaint; “he or she
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may avoid federal jurisdiction by exclusive reliance on state law.” Id. A plaintiff is not
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required to assert federal claims, even if they exist. Id. Rather, a plaintiff who has both
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federal and state causes of action may choose to forego the federal claims and pursue only
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the state claims in state court. Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371-
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72 (9th Cir. 1987). Further, the “‘mere presence of a federal issue in a state cause of action
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does not automatically confer federal-question jurisdiction.’” Lippitt v. Raymond James
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Fin. Servs., Inc., 340 F.3d 1033, 1040 (9th Cir. 2003) (quoting, Merrell Dow Pharm., Inc. v.
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Thompson, 478 U.S. 804, 808 (1986)).
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This does not mean, however, that a plaintiff may defeat removal by “omitting to
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plead necessary federal questions in a complaint.” ARCO Envtl. Remediation v. Dep’t of
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Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000) (quotation omitted). Where
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state law creates the cause of action pled, “original federal jurisdiction is unavailable unless
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it appears that some substantial, disputed question of federal law is a necessary element of
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one of the well-pleaded state claims, or that one or the other claim is ‘really’ one of federal
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law.” Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1,
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13 (1983). A state-created cause of action thus arises under federal law: “(1) where federal
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law completely preempts state law . . . ; (2) where a claim is necessarily federal in character
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. . .; or (3) where the right to relief depends on the resolution of a substantial, disputed
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federal question.” ARCO Envtl. Remediation, 213 F.3d at 1114.
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Only cases in which a federal question appears on the face of the well-pleaded
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complaint are removable. Caterpillar, 482 U.S. at 392. Therefore, a federal defense is not a
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sufficient basis to establish removal jurisdiction, “even if the defense is anticipated in the
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plaintiff’s complaint, and even if both parties admit that the defense is the only question
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truly at issue in the case.” Franchise Tax Bd., 463 U.S. at 10, 13-14.
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A. Quiet Title Act
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Pursuant to the Quiet Title Act, the “United States may be named as a party
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defendant in a civil action under this section to adjudicate a disputed title to real property in
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which the United States claims an interest.” 28 U.S.C. § 2409a(a). “[T]wo conditions
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must exist before a district court can exercise jurisdiction over an action under the Quiet
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Title Act: (1) the United States must claim an interest in the property at issue, and (2) there
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must be a disputed title to real property.” Leisnoi, Inc. v. United States, 170 F.3d 1188,
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1191 (9th Cir. 1999). “If either condition is absent, the Act in terms does not apply and the
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district court lacks jurisdiction to entertain the action.” Id.
Under the first condition, the Government’s claimed interest need not be adverse
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to any party in the action, so long as the Government claims some property interest. Id. at
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1192. As to the second condition, “there must be a conflict in title between the United
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States and the plaintiff.” Id. This requirement may be satisfied if a third party asserts the
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interest on the United States’ behalf so long as that third party’s assertion of the United
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States’ interest clouds the plaintiff’s title. Id. at 1192. However, a dispute between the
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plaintiff and “some third party claiming an interest for itself will not satisfy the
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requirement.” Id.; see also Leisnoi, Inc. v. United States, 267 F.3d 1019, 1023 (9th Cir.
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2001).
A dispute over the existence or scope of an easement will satisfy the requirement
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that there be a dispute over title to real property. Robinson, 586 F.3d at 686 (“This court
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has repeatedly held that both disputes over the right to an easement and suits seeking a
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declaration as to the scope of an easement fall within the purview of the QTA.”); Leisnoi,
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170 F.3d at 1191 (“It is well settled that an easement is an interest in real property.”).
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Additionally, a dispute as to title exists when there is a “cloud upon the title of a plaintiff.”
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Robinson, 586 F.3d at 687 (quotation omitted).
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Here, there is no question the first condition is met. The United States claims to
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own the property at Nellis Air Force Base pursuant to which it granted an easement to
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County and entered into the EUL with City. However, the second condition is not met.
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Although County makes some sweeping statements as to ownership over the Range Wash
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which may suggest a conflict with the United States’ title to that property, the United States
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and the County have made clear in the related federally-filed action that no dispute as to
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title exists as between the two. (Mem. in Support of Suggestion of No Juris. (Doc. #34 in
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2:11-CV-00944-PMP-PAL) at 4-6; United States’ Responsive Mem. Regarding Juris. (Doc.
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#41 in 2:11-CV-00944-PMP-PAL) at 24-25; The County’s Response to Def.’s Request for
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Juris. Disc. & Evid. Hrg. (Doc. #55 in 2:11-CV-00944-PMP-PAL) at 2, 4; United States’
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Response to the City of N. Las Vegas’ Request for Juris. Disc. & Evid Hrg. (Doc. #57 in
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2:11-CV-00944-PMP-PAL) at 5-7.) Further, the Court rejects City’s argument that a
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dispute as between City and County suffices for the reasons set forth in the Court’s related
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Order in the federally-filed action.
County’s right to relief does not depend on the Quiet Title Act. The Quiet Title
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Act arises in this action only as a federal defense in that the City contends the United States
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granted it an easement through the EUL which permits it to discharge into the Range Wash
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regardless of County’s approval. City’s federal defense cannot support removal. The Court
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lacks jurisdiction over County’s Complaint under the Quiet Title Act.
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B. Clean Water Act
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Although City argues County artfully pleads its Complaint to avoid stating a
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Clean Water Act claim, County’s reference to the Clean Water Act in its background factual
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allegations does not create subject matter jurisdiction. County does not seek remedies
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under the Clean Water Act, and the City does not contend the Clean Water Act preempts
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state law claims. Even if the County could pursue a Clean Water Act claim, it has chosen
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not to do so, and instead seeks remedies under state law. As master of its Complaint,
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County may elect between state and federal remedies.
County’s right to relief does not depend on a finding that City violated the Clean
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Water Act. As the Court explained in the Court’s related Order in the federally-filed action,
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the County does not assert that City has violated the Clean Water Act. The Clean Water
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Act raises issues in this case only through City’s assertion that its National Pollution
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Discharge Elimination System permit and the County’s approval of the areawide waste
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management plan obviate the need for City to obtain any further approval from County.
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City’s federal defense cannot support removal jurisdiction.
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C. Property Clause
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County’s right to relief does not depend on the Property Clause. As explained in
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the Court’s Order in the related federally-filed action, the Property Clause arises in this case
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only through City’s assertion that the United States’ authority to control activities on Nellis
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Air Force Base supercedes local regulation of City’s WRF and related discharges on federal
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property. City’s federal defense cannot support removal jurisdiction.
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D. Costs
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If the Court finds removal is improper, the Court “may require payment of just
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costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
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28 U.S.C. § 1447(c). However, “[a]bsent unusual circumstances, courts may award
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attorney’s fees under § 1447(c) only where the removing party lacked an objectively
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reasonable basis for seeking removal.” Gardner v. UICI, 508 F.3d 559, 561 (9th Cir. 2007)
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(quotation omitted).
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The Court will deny the request for costs and attorney’s fees, as the Court
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concludes City had an objectively reasonable basis for removal. County’s Complaint made
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broad assertions that it owned the Range Wash and sought a declaration that no other rights
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interfered with its rights in the Range Wash. (Notice of Removal, Ex. A at 3, 6.) Until the
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County and the United States clarified their respective positions in the related federally-
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filed action, it was objectively reasonable to read the Complaint as asserting property rights
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adverse to the United States supporting potential removal under the Quiet Title Act.
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III. CONCLUSION
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IT IS THEREFORE ORDERED that Plaintiff Clark County, Nevada’s
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Emergency Motion to Remand to State Court, With Fees and Costs (Doc. #5) is hereby
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GRANTED in part and DENIED part. The motion is granted in that this action is hereby
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REMANDED to the District Court in and for the County of Clark, State of Nevada in Case
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No. A-11-643529-C. The motion is denied as to Plaintiff Clark County, Nevada’s request
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for fees and costs.
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DATED: August 9, 2011
_______________________________
PHILIP M. PRO
United States District Judge
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