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

Filing 542

ORDER granting ECF No. 540 Stipulation Regarding In Limine Issues. Signed by Chief Judge Miranda M. Du on 11/5/2019. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

NICHOLAS A. TRUTANICH
United States Attorney
District of Nevada
TROY K. FLAKE
Deputy Civil Chief
501 Las Vegas Boulevard South, Suite 1100
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: 702-388-6787
Email: [e-mail]
EUGENE N. HANSEN
JOHANNA M. FRANZEN
ANTHONY C. GENTNER
MARK C. ELMER
Trial Attorneys, U.S. Department of Justice
Environment & Natural Resources Division
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044-7611
Telephone: [phone]
Facsimile: 202-514-8865
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for the United States

18
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

19
20

UNITED STATES OF AMERICA,

Case No. 2:15-cv-01743-MMD-NJK

21
22
23
24
25
26
27
28

Plaintiff,
v.
400 ACRES OF LAND, more or less,
situate in Lincoln County, State of Nevada;
and JESSIE J. COX, et al.,
Defendants.

STIPULATION REGARDING IN
LIMINE ISSUES

1

The Parties respectfully submit the following Stipulation Regarding In Limine Issues:

2

RECITALS

3
4

WHEREAS, the Court’s Scheduling Order requires that the Parties file any motions in
limine in this case no later than November 1, 2019 (ECF 506);

5
6

WHEREAS, on October 22, 24, and 31, 2019, the Parties met and conferred in an effort
to resolve all proposed motions in limine without Court involvement;

7
8

WHEREAS, the Parties reached agreement on several issues pertaining to the proposed
motions in limine;

9

WHEREAS, the Parties have recorded their agreement in this Stipulation; and

10

WHEREAS, the Parties respectfully request that the Court so order these stipulations.

11

STIPULATIONS FOR TRIAL

12
13

NOW THEREFORE, the Parties stipulate as follows with respect to the trial scheduled in
this case:

14

1.)

The Parties, their witnesses, and counsel shall not put forward any evidence,

15

question, argument, testimony, or reference concerning the tax-assessed value of the land taken

16

in this eminent domain proceeding (hereafter “Subject Property”). 

17

2.)

The Parties, their witnesses, and counsel shall not put forward any evidence,

18

question, argument, testimony, or reference concerning the quantum of any intra-family transfer

19

of the Subject Property.1 

20

3.)

The Parties, their witnesses, and counsel shall not put forward any evidence,

21

question, argument, testimony, or reference that taxpayers are responsible for paying any award

22

of just compensation. 
4.)

23

Landowners’ expert witness Tio DiFederico shall not sponsor his $56,870,000

24

sales-comparison valuation and $57 million final value conclusion (hereafter, individually and

25

collectively, the “$57 million valuation”). Mr. DiFederico instead may sponsor his $49,870,000

26

million sales-comparison valuation and $50 million final value conclusion (hereafter,

27
28

1

The United States makes this stipulation in light of the Court’s prior ruling excluding
Landowners’ opinions of value.
1

1

individually and collectively, the “$50 million valuation”) as quantified in his Supplemental

2

Analysis dated July 26, 2018 and referencing his Appraisal of Real Property Groom Mine dated

3

October, 13, 2016. The Parties, their witnesses, and counsel accordingly shall not put forward

4

any evidence, question, argument, testimony, or reference to Mr. DiFederico’s $57 million value.

5

The United States further stipulates and agrees that it will not contend or elicit any testimony

6

suggesting that the $50 million valuation fails to appraise the entire condemned estate. 

7

5.)

Unless otherwise ordered by the Court or Commission (as authorized by the

8

Court), the Parties, their witnesses, and counsel shall not put forward any evidence, question,

9

argument, testimony, or reference concerning the capitalization rate and/or discount rate that

10

could be used to value the Subject Property under the income capitalization approach as the

11

Court excluded the income capitalization approach.2 This stipulation is without prejudice to any

12

appellate right to challenge the exclusion of the income capitalization approach as a method to

13

value the Subject Property.  

14

6.)

Unless otherwise ordered by the Court or Commission (as authorized by the

15

Court), the Parties stipulate and agree that the Court’s reasoning in excluding the Qualtrics

16

surveys from trial (see ECF 497 at 51-53) applies to exclude the surveys which were

17

administered at the Alien Research Center for this case (the “ARC Surveys”). The Parties, their

18

witnesses, and counsel accordingly shall not put forward any evidence, question, argument, or

19

testimony, regarding the ARC Surveys.3 This stipulation is without prejudice to any appellate

20

right to challenge the exclusion of the Qualtrics and ARC Surveys.  

21

7.)

The Parties, their witnesses, and counsel shall not put forward any evidence,

22

question, argument, testimony, or reference concerning (a) allegations that the United States Air

23

Force and/or other governmental officials have held people at gunpoint or otherwise detained

24
25
26

2

The Landowners make this stipulation in light of the Court’s prior ruling excluding the
use of the income capitalization approach.

27
3

28

Should the Commission inquire whether any surveys were conducted in this matter, the
parties shall be able to reference that the Qualtrics and ARC surveys were conducted and the
reason for the Court’s exclusion.
2

1

people on or near the Subject Property; (b) illness and deaths due to radiation from atomic

2

testing, including impacts to animals; and (c) bullets strafing the property. Notwithstanding the

3

foregoing, Landowners may put forward evidence of bullets allegedly strafing the Subject

4

Property in the late 1940s-early 1950s but only in the event that the United States, its counsel, or

5

its witnesses contend or suggest that mining production on the Subject Property declined in the

6

late 1940s-early 1950s because of diminishing ore quality and/or amounts. 

7

8.)

The Parties, their witnesses, and counsel shall not put forward any evidence,

8

question, argument, testimony, or reference concerning the United States’ deposit of $1.2 million

9

as the estimated just compensation or the Landowners’ withdrawal of any portion thereof. 

10

9.)

The Parties, their witnesses, and counsel shall not put forward any evidence,

11

question, argument, testimony, or reference concerning (a) amounts offered to settle or avoid the

12

2015 condemnation of the Subject Property or any conduct or statement made during

13

negotiations regarding the 2015 Condemnation of the Subject Property (including offers made by

14

the Parties in 2014 and 2015) and (b) the settlement of Landowners’ claim for relocation

15

expenses. The Parties recognize, however, that certain historical documents reflecting prior

16

negotiations and offers (i.e., documents created prior to 2014) otherwise may be relevant and

17

admissible. 

18

10.)

The Parties, their witnesses, and counsel shall not put forward any evidence,

19

question, argument, testimony, or reference concerning the character and motivations of

20

opposing counsel, specifically any allegations that counsel has attempted to delay this

21

proceeding and/or has engaged in discovery violations. This stipulation in and of itself shall not

22

prevent Landowners’ expert witnesses from testifying concerning (or Landowners otherwise

23

seeking to admit) the document entitled “Work Plan, Groom Mine Preliminary Assessment/Site

24

Inspection” (Bates stamped US0012619 -662) (“PA/SI”) or raising the timing of the disclosure

25

of the PA/SI, although the United States reserves its right to object to such testimony, argument,

26

and/or the introduction of the PA/SI into evidence on other grounds besides this stipulation. 

27
28

11.)

Unless otherwise ordered by the Court or Commission (as authorized by the

Court), the Parties, their witnesses, and counsel shall not put forward any evidence, question,

3

1

argument, testimony, or reference concerning Landowners’ request to have core drilling and

2

testing performed on the Subject Property after the filing of this case beyond an instruction to the

3

Commission. The substance of this Commission instruction will be drafted later by the Parties

4

and proposed to the Court, but, generally, the Parties agree that the Commission should be

5

instructed at the commencement of trial that Landowners requested core drilling and testing be

6

performed, that the United States opposed this request because, among other things, it would not

7

lead to information relevant to the property’s value as of the date of value and because of the

8

burdens imposed by the request, including the burden of having civilian access on the property

9

for one day or longer, and that the Court denied Landowners’ motion to compel entry to the

10

Subject Property to perform core drilling and testing.  

11
12
13

WHEREFORE, the Parties respectfully request that the Court so order the above
stipulations. 

14
15
16

SO ORDERED:

17
18
19
20
21

___________________________________
THE HON. MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
Dated: November 5, 2019.

22
23

FOR THE PARTIES:

24
25
26
27
28

Dated November 1, 2019
ON BEHALF OF PLAINTIFF:
NICHOLAS A. TRUTANICH
United States Attorney
District of Nevada
4

1
2
3
4
5
6
7
8

TROY K. FLAKE
Deputy Civil Chief
District of Nevada
/s/ Eugene N. Hansen
/s/ Johanna M. Franzen
EUGENE N. HANSEN
JOHANNA M. FRANZEN
ANTHONY C. GENTNER
MARK C. ELMER
Trial Attorneys
U.S. Department of Justice

9
10
11

ON BEHALF OF DEFENDANT SHEAHAN
LANDOWNERS:

12

LAW OFFICES OF KERMITT L. WATERS

13

/s/ James J. Leavitt______
KERMITT L. WATERS, ESQ.
Nevada Bar No. 2571
JAMES J. LEAVITT, ESQ.
Nevada Bar No. 6032
MICHAEL SCHNEIDER, ESQ.
Nevada Bar No. 8889
AUTUMN L. WATERS, ESQ.
Nevada Bar No. 8917
Attorneys for Defendant Sheahan
LANDOWNERS

14
15
16
17
18
19
20
21
22

ON BEHALF OF DEFENDANT TANIS
LANDOWNERS:

23

GUNDERSON LAW FIRM

24

/s/ John R. Funk
MARK H. GUNDERSON, Bar No. 2134
JOHN R. FUNK, Bar No. 12372
Attorneys for Defendant Tanis Landowners

25
26
27
28

5

CERTIFICATE OF SERVICE

1
2
3
4
5
6

I hereby certify that on November 1, 2019, I caused the foregoing Stipulation Regarding
In Limine Issues to be served on all parties who have appeared in this action using the Court’s
case management/electronic case filing system. I further certify that on November 1, 2019, the
United States sent a copy of the foregoing via U.S. mail to the following interested parties:
Sandra Sears-Lavallee
1172 Skyline Road
Henderson, NV 89002

Debbie DeVito
c/o Stanley Pedder
3445 Golden Gate Way
Lafayette, CA 94549

John B. Sheahan
address unknown

Melanie Goodpasture
P.O. Box 7044
Cotati, CA 94931

Deborah Lynn Sheahan
4662 Gabriel Drive
Las Vegas, NV 89121

House Rabbit Society
c/o Anne Martin (Registered Agent)
148 Broadway
Richmond, CA 94804

Diane Sibley-Origlia
1615 Via Romero
Alamo, CA 94507

Animal Place
c/o Kim Sturla (Registered Agent)
17314 McCourtney Road
Grass Valley, CA 95949

Katherine Kell
c/o Stanley Pedder
3445 Golden Gate Way
Lafayette, CA 94549

Hui Chu Poole
165 Lakewood Road
Walnut Creek, CA 94598

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Amy E. Sears
P.O. Box 71
Pioche, NV 89043
/s/ Johanna M. Franzen
Johanna M. Franzen