United States of America v. 400 Acres of Land, more or less, situate in Lincoln County, State of Nevada

Filing 111

ORDER DETERMINING LEGAL VALIDITY OF TAKING AND STRIKING IMPROPER DEFENSES re ECF No. 110 Proposed Order, granting ECF No. 54 Motion for Summary Judgment on the United States' Authority to Condemn; granting ECF No. 54 Motion to Strike with respect to the affirmative defenses raised in ECF No. 53 Answer; denying ECF No. 54 Motion to Strike with respect to remaining matters. Signed by Judge Miranda M. Du on 10/4/2016. (Copies have been distributed pursuant to the NEF - KR) Modified on 10/5/2016 to clarify (KR).

Case 2:15-cv-01743-MMD-NJK Document 110 Filed 09/19/16 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
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v.
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400 ACRES OF LAND, MORE OR LESS,
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SITUATE IN LINCOLN COUNTY, STATE OF )
NEVADA; and JESSIE J. COX, et al.,
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Defendants.
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Case No. 2:15-cv-01743-MMD-NJK
ORDER DETERMINING LEGAL
VALIDITY OF TAKING AND STRIKING
IMPROPER DEFENSES

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This is a federal eminent domain proceeding to condemn property for the purpose of operating
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the Nevada Test and Training Range, a military test and training facility at Nellis Air Force Base.

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Plaintiff United States of America initiated this case by filing a Complaint in Condemnation [ECF

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No. 1], to which several Defendant-Landowners jointly filed an Answer [ECF No. 53] setting forth

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their objections, defenses, challenges and responses. Pending before the Court are the United States’

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Combined Motion for Summary Judgment on the United States’ Authority to Condemn and Motion
to Strike Improper Defenses and Immaterial Matters [ECF No. 54], the Defendant-Landowners’

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Opposition [ECF No. 59], and the United States’ Reply [ECF No. 66]. Having considered the
pleadings and hearing the arguments of counsel, and for good cause shown, it is hereby ORDERED:
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The United States’ Motion for Summary Judgment on the United States’ Authority to

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Condemn is GRANTED. This taking is for a congressionally authorized public use identified

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in the United States’ Complaint [ECF No. 1-3], and is legally valid; and this Court has

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jurisdiction over all relevant matters in this proceeding under 28 U.S.C. § 1358.


The United States’ Motion to Strike is GRANTED with respect to the affirmative defenses

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raised by the Defendant-Landowners in their Answer [ECF No. 53]. The defenses of laches,
waiver and failure of consideration do not apply in federal condemnation proceedings.
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Case 2:15-cv-01743-MMD-NJK Document 110 Filed 09/19/16 Page 2 of 4

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

The United States’ Motion to Strike is DENIED with respect to remaining matters. The
remaining objections, demands and responses in the Defendant-Landowners’ Answer [ECF
No. 53] do not affect the legal validity of the taking and need not be addressed by the Court at
this time.

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DATED:

October 4, 2016
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______________________________
UNITED STATED DISTRICT JUDGE

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Respectfully submitted by:

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UNITED STATES OF AMERICA

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DANIEL G. BOGDEN
United States Attorney
District of Nevada
TROY K. FLAKE
Assistant United States Attorney

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/s/ Georgia Garthwaite
GEORGIA GARTHWAITE

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/s/ Johanna Franzen
JOHANNA FRANZEN

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Trial Attorneys
U.S. Department of Justice

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Attorneys for Plaintiff United States

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Approved as to content and form:

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LAW OFFICES OF KERMITT L. WATERS

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/s/ Autumn Waters
KERMITT L. WATERS
JAMES JACK LEAVITT

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Case 2:15-cv-01743-MMD-NJK Document 110 Filed 09/19/16 Page 3 of 4

MICHAEL A. SCHNEIDER
AUTUMN WATERS

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Attorneys for Defendant Sheahan Landowners

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Case 2:15-cv-01743-MMD-NJK Document 110 Filed 09/19/16 Page 4 of 4

CERTIFICATE OF SERVICE

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I hereby certify that on September 19, 2016, I served the foregoing proposed order on all
parties who have appeared in this action using the Court’s case management/electronic case filing
system. In addition, I hereby certify that on September 19, 2016, I caused a copy of the foregoing

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proposed order to be sent via U.S. mail to the following parties:
Lincoln County
c/o Daniel Hooge, District Attorney, Lincoln
181 North Main Street, Suite 203
P.O. Box 60
Pioche, NV 89043
Sandra Sears-Lavallee
4729 San Rafael Avenue
Las Vegas, NV 89120-1676

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Patricia Fern Sears
P.O. Box 71
Pioche, NV 89043-0071
John B. Sheahan
c/o Michael W. Sheahan
6717 Rolling Meadows
Drive #916
Sparks, NV 89436-0106
Deborah Lynn Sheahan
4662 Gabriel Drive
Las Vegas, NV 89121

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/s/ Georgia Garthwaite
GEORGIA GARTHWAITE

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