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

Filing 663

ORDERED that the Report of the Commission (ECF No. 656 ) is accepted and adopted in full. It is further ordered that just compensation for the taking of the Property is $1,100,000, plus another $104,000 for the mineral estate (a s separately agreed to by the parties), for a total of $1,204,000. The Clerk of Court is directed to issue a check in an amount corresponding to the funds still held by the Clerk of Court in this case to the Law Offices of Kermitt L. Waters (ECF Nos. 10 , 85 ). (Ad hoc email (NEF) to Finance on 8/27/2020.) It is further ordered that Plaintiff's motion to adopt in part and modify in part the Commissions Report (ECF No. 659 ) is granted in part, and denied in part, as e xplained in this order. It is further ordered that Landowners' objections to the Commissions Report (ECF No. 660 ) are overruled, and their request to modify the Report in part is denied. The Clerk of Court is directed to enter judgment in accordance with this order and close this case. Signed by Chief Judge Miranda M. Du on 8/27/2020. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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UNITED STATES OF AMERICA,

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Plaintiff,

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

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ORDER

v.

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

I.

SUMMARY

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In this eminent domain action, the Court has found that the United States’ taking of

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property (“the Property”)1 for the purpose of operating the Nevada Test and Training

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Range (“NTTR”), a military test and training facility at Nellis Air Force Base, is for a

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congressionally authorized public use. (ECF No. 111 at 1.) This leaves the amount of just

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compensation based on the Property’s highest and best use as the sole remaining issue.

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The Court appointed a land commission (the “Commission”) (ECF No. 501)2 under Fed.

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R. Civ. P. 71.1(h)(2) to determine the amount of just compensation primarily because the

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Property is unique—at the time of the taking, it was the only piece of private property with

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1The

Property consists of approximately 400 acres of mining claims in Lincoln
County, Nevada. (ECF No. 656 at 3.) It more specifically consists of “six patented mining
claims totaling 87.49 acres and 15 unpatented mining claims totaling approximately 309.9
gross acres[.]” (Id.) The parties’ experts’ valuation of the Property was based on the
acreage of the patented mining claims, as a patented mining claim is equivalent to fee
simple ownership. (Id.; see also ECF Nos. 653 at 76, 654 at 89, 659 at 12.)
2The

Commission consisted of a retired Nevada Supreme Court Justice, the
Honorable Michael L. Douglas, a retired United States District Judge for the District of
Nevada, the Honorable Philip M. Pro, and a retired United States Magistrate Judge for the
District of Nevada, the Honorable Peggy A. Leen. (ECF Nos. 515, 522, 656 at 43.)

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an unobstructed view of the NTTR, which is known in popular culture as Area 51, and it

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contains buildings and other indicia of mining activity dating back to the 1850s. After a site

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visit to the Property,3 and a bench trial before the Commission, the Commission issued a

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report concluding that just compensation for the Property is $1.1 million. 4 (ECF No. 556

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(the “Report”).) Before the Court are objections both parties filed to the Report. (ECF Nos.

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659, 660.) Plaintiff the United States urges the Court to largely adopt the Report, but

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reduce the amount of just compensation. (ECF No. 659.) Defendants, landowners with

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interests in the Property (the “Landowners”), asserted numerous objections to the Report.

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(ECF No. 660.) As further explained below, the Court will overrule all objections, and adopt

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the Commission’s Report in full because the Court agrees with the Commission’s well-

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reasoned and well-supported Report.

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II.

BACKGROUND

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The Court again incorporates by reference the background facts set forth in one of

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the Court’s prior orders on the parties’ motions involving evidentiary issues (ECF No. 497

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at 2-3), and the Commission’s findings of facts (ECF No. 656 at 9-15). The Court further

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incorporates by reference the stipulated facts included in the Report to provide further

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background for this case. (Id. at 5-8.)

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III.

DISCUSSION

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The Court will first briefly explain why it has decided to adopt the Report, address

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Plaintiff’s objection, and then address Landowners’ objections.5 A copy of the Report is

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attached to this order as Appendix A.

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3The

Court also attended the site visit. (ECF No. 605.) The Court gave the
Commission instructions at seven sites pursuant to the parties’ stipulation. (Id.)
4Not

including mineral rights, which are subject to a separate agreement between
the parties. (ECF Nos. 596, 598.)

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5The

Court’s review is de novo. See Fed. R. Civ. P. 71.1(h)(2)(D); Fed. R. Civ. P.

53(f).
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A. The Report

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At a high level, the valuation question the Commission answered in the Report

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required the Commission to weigh the credibility of Landowners’ primary expert Tio

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DiFederico against the credibility of Plaintiff’s primary expert Warren Neville. As reflected

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in the Report, the Commission found DiFederico not credible, and Neville credible. The

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Court agrees with this core finding. As extensively detailed in the Report, DiFederico’s

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opinions and corresponding report were speculative and not grounded in credible

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evidence. In contrast, Neville’s opinions and corresponding report were reasonable and

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grounded in pertinent data.

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After rejecting Landowners’ proffered large-scale tourism use based primarily on

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DiFederico’s testimony as speculative (ECF No. 656 at 15-39), the Commission explained

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that Plaintiff’s proffered rural recreational use based primarily on Neville’s credible

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testimony aligned with Landowners’ existing use of the Property, complied with applicable

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professional standards, and was otherwise reasonable (id. at 39-41). However, the

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Commission found Neville insufficiently weighed the uniqueness of the Property in his

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valuation, and thus valued the Property based on a higher price per acre than Neville did.

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(Id. at 41-43.)

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As further explained below while addressing the parties’ objections, the Court

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agrees with the Report, and will adopt it in full. The Report is well-reasoned, clear, and

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well-supported by citations to the record evidence in this case. DiFederico’s outlandish

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valuation was insufficiently supported by any relevant and credible evidence. In contrast,

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and like the Commission, the Court finds Neville’s approach reasonable and well-

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supported by relevant evidence. But the Court also agrees with the Commission that

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Neville somewhat undervalued the Property because he insufficiently accounted for its

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uniqueness.

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B. Plaintiff’s Objection (ECF No. 659)

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Plaintiff largely urges the Court to adopt the Report in full, with one exception.

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Plaintiff argues the Commission applied an additional 25% premium per acre above the

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highest-priced comparable sale used by Plaintiff’s expert Neville without any evidentiary

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basis for doing so. (ECF No. 659 at 8-12.) Plaintiff therefore asks the Court to revise down

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the Commission’s just compensation finding for the Property to $874,900, plus another

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$104,000 for the mineral estate, for a total of $978,900. (Id. at 3 n.4, 12.)

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But notably, Plaintiff does not challenge “the Commission’s finding that the Groom

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Mine is unique because it was a former family mining property and because it offers a

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view” of Area 51. (Id. at 10-11.) Plaintiff only objects to how the Commission quantified

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that uniqueness by applying the 25% premium. (Id. at 11.) The Court therefore adopts

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without objection the Commission’s finding that the Property is unique. In addition,

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however, the Court agrees with the premium the Commission applied to Neville’s most

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expensive comparable property to arrive at its valuation for the Property.

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To start, the Commission had ample evidence to find the Property unique, that

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Neville failed to sufficiently weight the Property’s uniqueness, and to then apply a premium

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to the Property’s valuation. (ECF No. 656 at 11-12 (finding the evidence established

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substantial interest in Area 51, and the Property had an exclusive view of Area 51); see

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also id. at 41 (finding “Neville failed to give sufficient consideration to the unique one-of-a-

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kind nature of the Groom Mine.”).) Further, the site visit convinced the Court of the

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uniqueness of the Property. (ECF No. 600 (“Joint Instructions”) at 12 (instructing the

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Commission that, in determining fair market value, they may consider, “not only the

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opinions of the various witnesses who testified as to the market value, but also all other

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evidence in the case that may aid in determining market value[,]” which the Court interprets

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as permitting the Court to consider its experience and observation at the site visit).) The

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old buildings and other indicia of historical mining activity were interesting. The desert

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landscape and views from the Property were beautiful. And more importantly, the view of

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the remote operating base known in popular culture as Area 51 was quite clear.

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Considering the clarity of the view in conjunction with the Court’s knowledge of that view’s

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exclusivity, and its awareness of the Area 51 phenomena in popular culture, the Court

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found the Property special. It had an inexplicable quality to it, its aura no doubt influenced

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by the question of whether other life forms exist in the universe. The Court therefore

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agrees with the Commission the Property would command some sort of premium over the

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most expensive comparable sale selected by Neville—a nicer, but not as unique, property.

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Turning to the amount of the premium, while it is difficult to say exactly why it should

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be 25%, the Court also cannot say that this premium is arbitrary or unreasonable, or that

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some other premium is more logical than 25%. Regardless, after reviewing the Report,

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the parties’ briefs, and the evidence before the Commission, the Court has not been able

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to devise a more rational premium. The Court therefore agrees with the Commission that

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25% per acre was an appropriate premium to apply in this case. The Court’s agreement

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with the Commission is informed by both the substantial evidence offered by Landowners

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of the uniqueness and exclusivity of the Property at the time of the taking, along with

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general interest in Area 51.

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As to Plaintiff’s objection, the Court does not disagree that it could have excised

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the 25% premium because the Court’s review is de novo. (ECF No. 659 at 12 (relying on

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caselaw).) But, for the reasons provided above, the Court chooses not to. Further, Joint

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Instruction 15 does not compel a different result because “determination of the market

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value of an estate or interest in land, at a given date, is necessarily based upon

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assumption rather than fact.” (ECF No. 600 at 19; see also ECF No. 659 at 11 (arguing

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this instruction weighs against adopting the Commission’s 25% per acre premium).)

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Neither does Joint Instruction 5, because the “report need not include detailed findings on

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all contested issues, but it must show the pathway that you took through the maze of

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conflicting evidence[,]” and the Court finds that paragraph 166 of the Report does this

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when read in light of the whole Report. (ECF Nos. 600 at 7 (Joint Instruction 5), 656 at 43

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(including paragraph 166), 659 at 11 (arguing this instruction weighs against adopting the

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Commission’s 25% per acre premium).)

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In sum, the Court overrules Plaintiff’s objection. (ECF No. 659 at 8-12.)

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C. Landowners’ Objections

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Depending on how you count them, Landowners raised approximately 24

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objections to the Report. (ECF No. 660.) Landowners insist they are entitled to

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$49,870,000.00 for the Property. (Id. at 76.) Landowners’ objections may be organized

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into five groups.6 The Court addresses each of the five groups of objections, in turn, below.

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1.

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The Level of Detail in the Commission’s Highest and Best Use
Analysis (Objection V.(1)(A))

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Landowners contend that the Commission did not perform a sufficiently detailed

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analysis of all four highest and best use prongs (physically possible, legally permissible,

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financially feasible, and maximally productive), which led to error when they rejected

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Landowners’ proposed tourism use as speculative. (ECF No. 660 at 18-19.) The Court

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disagrees.

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To start, Landowners primarily rely on Desert Citizens Against Pollution v. Bisson,

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231 F.3d 1172, 1181 (9th Cir. 2000) to support this objection.7 (ECF No. 660 at 18-19.)

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However, Desert Citizens was not—like this case—a condemnation case. Indeed, the

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Desert Citizens court specifically distinguished another case because it was a

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condemnation case. See 231 F.3d at 1183. Moreover, to the extent Desert Citizens is

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even applicable, Landowners specifically cite to page 1181 (ECF No. 660 at 18-19), which

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contains the following qualification: “While uses that are merely speculative or conjectural

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6The

Court also refers to Landowners’ objections using the section headings
Landowners assigned to them. (See generally ECF No. 660.)
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Court discussed Desert Citizens in a prior order after Landowners relied on it,
and did not raise this issue of its applicability, instead assuming it applied. (ECF No. 497
at 5-6, 27-28.)
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need not be considered, uses that are “reasonably probable” must be analyzed as a

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necessary part of the highest and best use determination.” Id. at 1181.

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That qualification renders Landowners’ objection unpersuasive because the

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Commission specifically rejected Landowners’ valuation of the Property as too

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speculative. (ECF No. 556 at 15-39; see also id. at 16 (“[T]he issue is not whether any

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commercial tourism use was reasonably probable at the Date of Value (i.e., physically

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possible, legally permissible, financially feasible, and maximally productive). The issue is

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whether Landowners have supported their proposed large-scale tourism use involving

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bringing 91,250 people to the Groom Mine, paying $450 each, year after year.”).) Thus,

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even considering Desert Citizens, the Commission was not required to complete the

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highest and best use analysis for Landowners’ proffered large-scale tourism use because

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the Commission determined—over the course of many pages of analysis—it was too

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speculative. (Id. at 15-39.) See also Desert Citizens, 231 F.3d at 1181.

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Moreover, the Commission conducted more highest and best use analysis than

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Landowners give them credit for. For example, Landowners argue “there is no analysis on

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the physical possibility element” in the Report. (ECF No. 660 at 19.) But the Commission

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concluded that even Landowners’ speculative, proposed use was physically possible.

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(ECF No. 556 at 8.) Thus, Landowners’ representation in their objection is both inaccurate,

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and odd, because the Commission concluded that particular prong of the analysis actually

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favored Landowners’ position. Additionally, the Commission provided extensive findings

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as to why it did not find Landowners’ proposed large-scale tourism use legally permissible.

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(Id. at 29-33.) The Commission also did not find Landowners’ proposed use financially

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feasible. (Id. at 16-33.) Finally, the Commission found that using the Property as a rural,

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recreational retreat was its maximally productive use. (Id. at 41.) Thus, Landowners’

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argument that the Commission did not conduct a highest and best use analysis is

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unpersuasive—because it is unsupported in view of the actual content of the Report.8 The

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Court therefore overrules Landowners’ objection V.(1)(A). (ECF No. 660 at 18-19.)

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2.

The Commission’s Application of Governing Legal Standards
(Objections V.(1)(B), V.(1)(C)(3), V.(1)(C)(6), V.(1)(D), V.(2)(A))

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A number of Landowners’ objections generally argue the Commission either did not

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apply the correct legal standard as provided to them in the Joint Instructions (ECF No.

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600), or incorrectly applied those instructions. And while the Court will discuss some of

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Landowners’ more specific objections below, the Court generally finds Landowners’

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arguments unsupported in view of the content of the Report, and the very Joint Instructions

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Landowners rely on to make their arguments.

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To start, Landowners appear to confuse ‘proof’ and ‘evidence.’ Landowners argue

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the Commission erred in determining that their existing use of the Property—as a rural,

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recreational retreat—was the highest and best use of the Property. (ECF No. 660 at 20-

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23.) Landowners rely on both a Joint Instruction and caselaw providing that “the existing

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use of property at the date of value in an eminent domain action is only presumed to be

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the highest and best use in the ‘absence of proof to the contrary.’” (Id. at 20 (citation

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omitted).) They then go on to argue that the Commission erred because it assigned little

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weight to the evidence Landowners presented as to their proposed large-scale

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commercial tourism use as speculative, repeatedly emphasizing the ‘absence of proof to

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the contrary’ language. (Id. at 20-23.) Landowners even go so far as to state, “[h]ere, it is

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uncontroverted that there was significant proof of a higher and better use, other than the

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existing use made of the Property[.]” (Id. at 21.) Later on the same page, Landowners

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characterize their ‘proof’ as ‘evidence.’ (Id.)

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8Indeed,

Landowners appear to argue the Commission’s analysis in its Report is
flawed because the Commission did not adopt Landowners’ proposed analysis. (ECF No.
660 at 19 (stating that they “provided the appropriate analysis for each of these individual
elements” and criticizing the Commission for not following that analysis).) But declining to
rule in Landowners’ favor is not necessarily error. The Commission’s job was to decide
the appropriate valuation for the Property in light of competing proposals from both sides.
The Commission was obviously not required to adopt Landowners’ positions.
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This argument is unpersuasive. It is plainly controverted as to whether there is

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significant proof of a higher and better use of the Property than a rural, recreational use.

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That was one of the key issues presented at the bench trial before the Commission, and

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Plaintiff extensively argued in its proposed findings of fact and conclusions of law that

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Landowners’ evidence as to their proposed large-scale tourism use was too speculative.

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(ECF No. 653 at 16-72.) Thus, it is not—and cannot be—uncontroverted. Moreover, there

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is no question Landowners presented evidence at the bench trial. But the Commission

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spent many pages of its Report explaining why it found Landowners’ evidence

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unpersuasive. (ECF No. 656 at 15-39.) Thus, Landowners’ evidence never became proof.

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And the Court declines to deem it proof in this order because, as explained above, the

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Court agrees with the Commission that Landowners’ evidence as to their proposed large-

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scale commercial tourism use was too speculative to establish it is the Property’s highest

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and best use.

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Further, the Court finds the Commission faithfully applied Joint Instruction 13. (ECF

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No. 600 at 16 (“However, in absence of proof to the contrary, the current use is presumed

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to be the best use.”).) Because the Commission rejected Landowners’ evidence as to their

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proposed large scale tourism use as too speculative, the Commission did not err in

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determining that Landowners’ use as of the time of the taking was the highest and best

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use. Relatedly, Landowners also object to the Commission’s use of the word ‘presumption’

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(ECF No. 660 at 21-23), but the Court finds the Commission’s use of the word presumption

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is nothing more than an accurate rephrasing of Joint Instruction 13 (ECF No. 556 at 5).

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The Court therefore overrules Landowners’ objection V.(1)(B) (ECF No. 660 at 20-23).

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Landowners raise a few other, similar objections. For example, they repeatedly

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argue the Commission applied an improper “exact and actual” evidentiary standard to

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evidence presented by Landowners through their expert DiFederico. (ECF No. 660 at 37

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(Objection V.(1)(D)), 660 at 53-58 (Objection V.(1)(D)(3)(a)), 67 (Objection V.(1)(D)(4)).)

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But the Commission does not use this phrase anywhere in the Report. And when the Court

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carefully reviewed the Report (again) after reviewing these objections, the Court finds the

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Commission applied the correct evidentiary standard. (Compare, e.g., ECF No. 660 at 37

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(arguing the Commission applied the ‘exact and actual’ standard in ECF No. 656 at 15-

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16) with ECF No. 656 at 15-16 (stating that Landowners’ expert DiFederico’s proposed

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“tourism operation involving 250 daily customers, coming on the Groom Mine 365 days

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per year, with each visitor paying an entrance fee of $400 and an additional $50 for

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knickknacks” was unsupported by any market evidence).)

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At a high level, Landowners appear to suggest in making their ‘exact and actual’

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argument that the Commission should have found in their favor because the burdens they

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are subject to (i.e. preponderance of the evidence) are not particularly high. (ECF No. 660

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at 53-56 (attacking the Commission’s finding that DiFederico’s proposed $400 admission

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charge was unreasonable because he talked to 11 booking agents, one of them told him

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$300 would be reasonable, and he did not say what the other agents told him; and

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attacking the Commission’s finding that the fact 2,000 people annually pay $200 dollars

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to go on an existing Area 51 photo tour does not establish that 91,250 people annually will

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pay $400 to go to the Property).) But while it may be true the preponderance of the

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evidence standard is not particularly high, the Commission found Landowners did not carry

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that burden—and the Court agrees with the Commission. (ECF No. 656 at 17 (“The

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Commission finds Landowners have not met their burden of establishing by a

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preponderance of the evidence that there was market demand or the prospect of market

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demand for Landowner’s proposed large-scale tourist commercial use in the reasonably

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foreseeable future for the reasons explained below.”), 25-28 (finding DiFederico’s

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proposed $400 fee was inadequately supported).) Thus, Landowners’ argument is

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unconvincing, in part because DiFederico’s report and testimony lack persuasive force.

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As explained throughout this order, DiFederico’s report and testimony do not establish

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much of anything, even under a preponderance standard.9 The Court therefore overrules

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Landowners’ objections V.(1)(D), V.(1)(D)(3)(a), and V.(1)(D)(4). (ECF No. 660 at 37, 53-

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58, 67.)

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Landowners’ final objection in this vein is that the Commission erred in their

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analysis of DiFederico’s proposed comparable sales because the Commission insisted on

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properties similar to the Property, which created an impossibly high burden for the

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Landowners to meet because the Property is unique. (ECF No. 660 at 67-68 (objections

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V.(2), V.(2)(A)).) This objection is unpersuasive both because it mischaracterizes the

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Commission’s pertinent findings, and DiFederico’s proposed comparable sales are so

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remarkably unlike the Property. To start, the Commission did not deviate from the pertinent

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instructions in stating how comparable the sales had to be. (ECF No. 656 at 33 (relying

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on Commission Instruction No 14).) Moreover, the Commission merely determined

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DiFederico’s proposed comparable sales were insufficiently similar to the Property. (Id. at

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656 at 33-39; see also id. at 33 (“Mr. DiFederico misapplied the sales comparison

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approach by selecting sales from a drastically different market, by adjusting those sales

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inconsistently, and by failing to support those adjustments with any market evidence.”).)

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Thus, Landowners’ objection is generally unpersuasive.

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9As

just one example, DiFederico estimated that every tourist who came on his
proposed $400 tour to the Property would spend $50 on food and souvenirs in part
because he spends a lot on money on churros when he takes his family to Disneyland.
(ECF No. 656 at 28-29.) But how would a tourist spend any money on food and souvenirs
considering that Landowners’ proposal included no capital improvements? (ECF No. 660
at 7.) The Court assumes some capital improvement would be necessary to build a
souvenir stand or cafe on the Property, unless Landowners contemplated selling the
tourists souvenirs and offering them food in the vehicle used to transport them to and from
the Property—though Landowners never argued this. (ECF No. 654 at 64.) DiFederico
also supported this $50 figure by pointing to sales at the Alien Research Center, but those
sales only averaged $26.75 once the Alien Research Center’s owner excluded everyone
who did not buy anything. (ECF No. 656 at 28.) And as the Commission also pointed out,
DiFederico’s analysis assumed sustained demand (250 people a day spending $50 on
knickknacks forever) without providing any evidence for such sustained demand. (Id. at
29.) Thus, DiFederico’s food and souvenir spending assumption is incredible in the literal
sense of the word—impossible to believe. It is also representative of many of DiFederico’s
other assumptions in his report and testimony.
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Landowners’ argument in these objections also glosses over the dissimilarity

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between the Property and DiFederico’s five selected comparable sales. His five selected

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comparable sales are all in the Las Vegas metropolitan area—one of the them right off the

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Las Vegas strip and next to the MGM Grand Hotel. (ECF No. 656 at 34-39.) In contrast,

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the Property is about 2.5 driving hours from Las Vegas, an hour from the nearest medical

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facility, and down a long dirt road inside a secret military base. (Id. at 5-15.) Moreover, the

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Property lacks power, water rights, internet, or a sanitation system capable of handling

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more than a few people at a time. (Id.) It presents obviously different development

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challenges than the sales DiFederico selected as comparable. And as the Commission

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pointed out, even DiFederico conceded the properties he selected were not really

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comparable. (Id. at 34.) In sum, for the reasons provided by the Commission (id. at 34-

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39), the Court is convinced DiFederico’s selected comparable sales are simply not

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comparable.10 The Court therefore overrules objections V.(2) and V.(2)(A). (ECF No. 660

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at 67-73.)

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More generally, the Court overrules all of Landowners’ objections that the

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Commission either did not apply the correct legal standard as provided to them in the Joint

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Instructions (ECF No. 600), or incorrectly applied those instructions in its Report.

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10Two

subsidiary points. First, Landowners’ argument the Court should consider
other valuation approaches beyond comparable sales is irrelevant at this point in the
litigation because the Court considered and rejected basically the same argument when it
excluded Landowners’ attempt to rely on the income approach, in part because the
Property had not generated any income since mining operations stopped in the 1950s.
(ECF No. 660 at 68 (acknowledging the Court excluded in the income approach at ECF
No. 497 at 14:3-4 ).) Second, Landowners’ argument they could not do better than the
comparable properties proffered by DiFederico because the Property is unique is
unconvincing. (ECF No. 660 at 68-73.) While the Court need not speculate, perhaps a
vacant property within a piece of federal land with views into Bryce Canyon or the Grand
Canyon (tourist attractions Landowners proffered as comparable) would have been a
better comparable sale, assuming such a sale existed? Regardless, the comparable sales
DiFederico selected are too dissimilar to the Property.
12

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3.

1

Challenges to Particular Factual Findings (Objections
V.(1)(D)(3)(b)-(f))

2

Landowners also object to specific factual findings the Commission included in the

3

Report. (ECF No. 660 at 58-67.) The Court will briefly address—and overrule—those

4

objections.

5

Landowners first challenge the Commission’s conclusion that the Las Vegas

6

Convention and Visitors Authority (“LVCVA”) survey data that DiFederico relied on does

7

not establish demand for Landowners’ proposed large-scale tourism use of the Property.

8

(ECF No. 660 at 58-61 (Objection V.(1)(D)(3)(b)).) However, the Court agrees with the

9

Commission’s finding in the Report. (ECF No. 656 at 22.) Landowners more specifically

10

argue the Commission should have credited the testimony of their experts—who relied on

11

the LVCVA—rather than Plaintiff’s experts, whose testimony the Commission relied on to

12

support their findings, because Landowners’ experts are more familiar with Southern

13

Nevada. (ECF No. 660 at 58-60.) However, the Commission did not rely on the testimony

14

of Plaintiff’s experts for anything specific to Nevada. (ECF No. 656 at 22.) Instead, the

15

Commission relied on that testimony to buttress the Commission’s findings that: (1)

16

surveys about an entire metropolitan area do not establish demand for a particular project;

17

(2) nothing in the LVCVA survey attempts to quantify demand for alien-themed tourism;

18

and (3) Landowners’ expert DiFederico did not sufficiently consider how price impacts

19

demand. (Id.) The Court is unable to see how local knowledge would change these

20

findings. In addition, Landowners challenge the Commission’s finding that DiFederico’s

21

estimate of annual visitor traffic to the Property is merely ipse dixit. (ECF No. 660 at 60-

22

61.) But Landowners rely on the portion of the trial transcript immediately preceding the

23

portion the Commission did to support their argument. (Compare id. (relying in part on

24

ECF No. 633 at 24-25) with ECF No. 556 at 21-22 (relying in part on ECF No. 633 at 27-

25

42).) The Court agrees with the Commission’s view of this testimony, not Landowners’.

26

While of course DiFederico’s calculation of demand for Landowners’ proposed large-scale

27

tourism use will necessarily be subjective on some level, DiFederico pulled his demand

28
13

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1

estimate out of thin air. (See, e.g., ECF No. 633 at 38 (“I’m not a huge Laughlin fan

2

maybe.”).) The Commission was not required to accept DiFederico’s demand estimate.

3

The Court will thus overrule objection V.(1)(D)(3)(b). (ECF No. 660 at 58-61.)

4

Landowners next challenge the Commissions’ finding that interest in Area 51

5

peaked in the mid-1990s. (ECF No. 660 at 61-62 (Objection V.(1)(D)(3)(c).) The Court

6

overrules this objection as immaterial to the Commission’s Report. In considering the

7

Report as a whole, the Commission did not reject Landowners’ proposed large-scale

8

tourism use because interest in Area 51 peaked before the date of the taking, but because

9

it was speculative and unsupported. Moreover, the Commission otherwise found that

10

Landowners carried their burden to show there was substantial interest in Area 51 as of

11

the date of taking. (ECF No. 556 at 11-12 (noting in addition that Plaintiff conceded people

12

are interested in Area 51).) Thus, the Commission’s finding that interest in Area 51 peaked

13

in the mid-1990s did not prevent them from finding in Landowners’ favor that people are

14

interested in Area 51. The Court will therefore overrule objection V.(1)(D)(3)(c) as

15

immaterial. (ECF No. 660 at 61-62.)

16

Landowners then challenge the Commission’s finding that the ‘Storm Area 51’

17

event was ‘not cancelled’ and was a ‘financial failure.’ (Id. at 63-65 (Objection

18

V.(1)(D)(3)(d).) The Court overrules this objection because the Commission rejected the

19

precise argument Landowners raise in their objection (ECF No. 656 at 20 n.6), and the

20

Court agrees with the Commission for the reasons stated in that footnote.

21

Landowners further challenge the Commission’s finding that Landowners did not

22

carry their burden to establish year-over-year demand for their proposed large-scale

23

tourism use by arguing that other alien-themed business in the area have been in business

24

for a while, other tourist attractions such as Grand Canyon West and Death Valley have

25

year-over-year demand, and over 3 million people signed up to ‘Storm Area 51’ on

26

Facebook in the summer of 2019. (ECF No. 660 at 65-66 (Objection V.(1)(D)(3)(e)).)

27

However, the other alien-themed businesses in the area and tourist attractions like Death

28
14

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1

Valley do not owe much of their value to exclusivity. DiFederico’s assumption that over

2

90,000 tourists a year will visit the Property forever depends on its exclusive view of Area

3

51—which necessarily becomes less exclusive over time, as more people visit. Thus,

4

those businesses and attractions do not demonstrate the Commission erred. As to

5

Landowners’ argument that the ‘Storm Area 51’ Facebook event evidences sustained

6

demand for their proposed large-scale tourism use, it is obvious that signing up for an

7

event on Facebook does not mean someone will pay $400 for 6.5 hour car ride into the

8

desert and back. Said more simply, the Court is unconvinced by Landowners’ arguments

9

and will therefore overrule objection V.(1)(D)(3)(e). (ECF No. 660 at 65-66.)

10

Landowners finally challenge the Commission’s finding in paragraph 111 of their

11

report that Landowners’ proposed large-scale tourism use might not be financially feasible

12

if it could not attract 91,250 annual visitors, and those visitors paid less than $400 per

13

person. (ECF No. 660 at 66-67 (Objection V.(1)(D)(3)(f)).) The Court overrules this

14

objection as immaterial because the Commission’s meaningful conclusion in that

15

paragraph was that “Landowners put on no evidence about the financial feasibility of a

16

tourism operation having less than 91,250 annual visitors.” (ECF No. 656 at 27.) That

17

finding supported the Commission’s broader conclusion that Landowners had not carried

18

their preponderance of the evidence burden to establish that a large-scale commercial

19

tourism use was reasonably probable. (Id. at 15-16.) Moreover, the Commission correctly

20

made clear it was not permitted to “attempt to value some ‘smaller scale’ tourism scenario

21

(e.g., where tourists come to the property one weekend per month) because Landowners

22

did not put forward any sales to value such a ‘small scale’ commercial tourism use.” (Id.

23

at 16.) Thus, the particular sentences of the Report Landowners object to had no real

24

bearing on the Commission’s findings as to their just compensation award

25

recommendation. Objection V.(1)(D)(3)(f) is overruled. (ECF No. 660 at 66-67.)

26

///

27

///

28
15

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1

4.

2

The Commission’s Alternative Holding that Landowners’
Proposed Large-Scale Tourism Use Was Not Necessarily
Legally Permissible (Objection V.(1)(C))

3

Landowners object to the Commission’s finding that, while some type of tourist use

4

of the Property was legally permissible, Landowners’ proposed tourism use was not

5

necessarily permissible. (ECF No. 660 at 23-26 (Objection V.(1)(C)).) Though the Court

6

overrules the entire objection, the Court will specifically address its major components.

7

First, the Court views the Commission’s pertinent holding as an alternative holding.

8

The Commission first found Landowners’ proposed large-scale tourism use too

9

speculative to constitute the Property’s highest and best use. (ECF No. 656 at 15-29.) The

10

Commission went on to also find that Landowners had not established their proffered

11

large-scale tourism use was permissible without a special use permit from Lincoln County,

12

and the Air Force could object to their proposed use. (Id. at 29-33.) Thus, even if the Court

13

did not agree with the Commission on these two latter points—though it does—it could

14

still adopt the Commission’s rejection of Landowners’ proposed large-scale tourism use

15

as too speculative.

16

Moving on to Landowners’ objections, Landowners primarily rely on Joint

17

Instruction 12—along with representations Air Force officials made at the time of the 1984

18

withdrawal—to argue the Commission’s finding that the Air Force could object to

19

Landowners’ proposed large-scale tourism use is erroneous because the parties

20

stipulated the Air Force could not cap the number of business visitors Landowners could

21

invite on the Property. (ECF No. 660 at 25-28.) However, this objection is unpersuasive.

22

From the 1984 withdrawal onwards, the Property was an island within the NTTR. (ECF

23

No. 556 at 6.) Both before and after the taking, the Air Force used the NTTR to conduct

24

classified missions. (Id. at 7.) Thus, as a matter of common sense, the Air Force might

25

object if Landowners began bringing 250 people on the Property every day for the

26

foreseeable future. That is very different from the occasional long weekends Landowners

27

used the Property for from the 1950s until the date of the taking. (Id. at 10-15.) Member of

28
16

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the Lincoln County Planning Commission Lytle also confirmed the Air Force, as an

2

adjacent property owner, could have objected if Landowners began bringing 250 people

3

a day onto the Property. (Id. at 32.) Moreover, this view aligns with an important caveat

4

included in Joint Instruction 12 that Landowners’ argument ignores: “However, any

5

positive or negative effects of the NTTR (if any) on the Property that were present prior to

6

December 19, 2014, should be considered.” (ECF No. 600 at 13-14.) Thus, the

7

Commission was permitted to consider the fact the NTTR encompassed the Property, and

8

the Air Force was therefore able to object if Landowners began bringing 250 people a day

9

to the Property notwithstanding the Air Force’s longstanding commitment to allowing

10

Landowners and their guests on to the Property.

11

This dovetails with Landowners’ argument the Commission violated the project

12

influence rule in finding the Air Force could object to Landowners’ proposed large-scale

13

tourism use. (ECF No. 660 at 28-30.) Landowners rely on caselaw and Joint Instruction 8

14

to make their argument. (Id.) As encapsulated in Joint Instruction 8, the project influence

15

rule provides the Commission should not “consider the fact that the United States

16

government has taken, or planned or intended to take, the land” in determining just

17

compensation. (ECF No. 600 at 10.) Landowners argue the Commission violated the

18

project influence rule in finding the Air Force could object to Landowners’ proposed large-

19

scale tourism use “as the Government’s necessities cannot influence in any way the value

20

of the Property.” (ECF No. 660 at 30.)

21

The Court disagrees. Landowners’ argument overlooks that the NTTR

22

encompassed the Property before the date of taking. As the operator of the NTTR—and

23

again as supported by Lytle’s testimony—the Air Force could have objected if Landowners

24

started bringing 250 people a day onto the Property. The Air Force’s ability to object does

25

not come from any contemplation of condemning the Property, but from its existing rights

26

as the adjacent (indeed, surrounding) landowner. The Commission’s finding thus did not

27

violate the project influence rule. Said otherwise, the Commission may have violated the

28
17

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1

project influence rule if it valued the Property at $0 because the Air Force was condemning

2

it—but that is not what the Commission did. Instead, the Commission recognized the

3

reality that the NTTR has encompassed the Property since 1984.

4

Landowners’ remaining objections to the Commission’s legal permissibility findings

5

relate to the Property’s zoning. The Court also overrules these objections. The Property

6

was zoned A-5 at the date of taking, which permits agricultural uses as of right. (ECF No.

7

556 at 9.) Landowners more specifically argue the Commission erred because a rural

8

recreational use—the way Landowners had been using the Property for approximately 60

9

years—was not permitted under the A-5 zoning. (ECF No. 660 at 30-32.) However, Lytle

10

testified that Landowners’ existing use of the Property would be permitted because it

11

predated current zoning regulations,11 and was thus permitted under the A-5 zoning. (ECF

12

No. 632 at 17.)

13

Landowners, relying on Lytle’s testimony, also argue the Commission erred in

14

determining Landowners would have needed a special-use permit to engage in their

15

proposed large-scale commercial tourism use because a tourism use was permitted as of

16

right. (ECF No. 660 at 32-34.) However, Lytle did not testify Landowners did not need a

17

special-use permit, and other experts on both sides testified that Landowners would need

18

a special use permit. (ECF No. 556 at 29-33.) Moreover, as the Commission pointed out,

19

Lytle also testified that he, as a Lincoln County Planning Commission member, would have

20

entertained any objections from the Air Force if Landowners pursued their large-scale

21

tourism use. (Id. at 33.)

22

Landowners finally argue the Commission erred in determining Landowners had

23

not established they could get the special use permit from Lincoln County required for a

24

large-scale tourism use because they got a post-hoc special use permit. (ECF No. 660 at

25
26
27
28

11‘“Providing

such protection commonly is known -- in the case law and otherwise - as ‘grandfathering.’ We decline to use that term, however, because we acknowledge that
it has racist origins.’” Comstock v. Zoning Bd. of Appeals of Gloucester, Case No. 19-P1163, 2020 WL 4432295, at *3 n.11 (Mass. App. Ct. Aug. 3, 2020).
18

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1

34-36.) However, as the Commission found, Landowners did not describe the large-scale

2

tourism use they proffered to the Commission to the Lincoln County Planning Commission

3

when they applied for a post-hoc special use permit, the post-hoc special use permit

4

process they went through was not indicative of what would have happened under normal

5

circumstances because it was not noticed as it would have normally been, and the Air

6

Force did not participate in the process, though it would normally be expected to. (ECF

7

No. 556 at 30-33.)

8
9

In sum, the Court overrules all of Landowners’ objections within objection V.(1)(C)
to the Commission’s legal permissibility findings. (ECF No. 660 at 23-36.)

10
11

5.

The Commission Should Have Disqualified Plaintiff’s Experts
Neville and Weissenborn (Objection V.(2)(B))

12

Landowners also argue the Court should disqualify Plaintiff’s experts Neville and

13

Weissenborn primarily because neither of them has sufficient experience with Southern

14

Nevada. (ECF No. 660 at 73-76; see also id. at 73 n.29.) As to both experts, the Court

15

does not find their purported lack of experience with Southern Nevada disqualifying. Both

16

Neville and Weissenborn retained a local appraiser, Chris Matthews, to help them with

17

portions of their reports, in compliance with applicable professional standards, and to fill

18

any gaps in their knowledge stemming from their lack of familiarity with Southern Nevada

19

specifically. (ECF No. 634 at 135-145, 245.) As to Neville, the Commission found his

20

analysis complied with professional standards. (ECF No. 556 at 16-19, 40-41.) Further,

21

the Court already considered and denied a motion Landowners filed to exclude Neville’s

22

opinion for similar reasons. (ECF No. 497 at 23-29.) Landowners also overlook that Neville

23

had some particularly relevant appraisal experience: he appraised the Fuchs Nuclear

24

Mine, a patented mining claim within the NTTR, and conducted appraisals of three other

25

mining inholdings within the Lake Mead National Recreation Area. (ECF No. 634 at 163-

26

64.) And even Landowners’ expert Harper agreed that Neville’s appraisal complied with

27

professional standards. (ECF No. 556 at 40-41.) As to Weissenborn, the Court similarly

28
19

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1

declined to exclude her testimony on particular subjects in a prior order. (ECF No. 497 at

2

14-17, 19-22.) The Court declines to disqualify Plaintiff’s experts Neville and Weissenborn.

3

Landowners finally argue the Court should disregard Neville’s testimony because

4

he did not conduct a financial feasibility analysis or market demand study for a commercial

5

tourism use in rejecting such a use as the Property’s highest and best use, though he

6

concluded such a use was physically possible and legally permissible with conditions.

7

(ECF No. 660 at 74-75.) However, the Commission considered and rejected this same

8

argument in the Report. (ECF No. 556 at 16-29.) The Court agrees with the Commission

9

for the reasons the Commission provided in the Report. (Id.) Moreover, Neville correctly

10

testified that he did not need to conduct a financial feasibility analysis because he

11

determined Landowners’ proposed tourist commercial use was not reasonably probable.

12

(ECF No. 634 at 213.) In sum, the Court overrules Landowners’ objections seeking to

13

exclude the testimony of Plaintiff’s experts Neville and Weissenborn. (ECF No. 660 at 73-

14

76 (Objection V.(2)(B).)

15

IV.

CONCLUSION

16

The Court notes that the parties made several arguments and cited to several cases

17

not discussed above. The Court has reviewed these arguments and cases and determines

18

that they do not warrant discussion as they do not affect the outcome of the issues before

19

the Court.

20
21

It is therefore ordered that the Report of the Commission (ECF No. 656) is accepted
and adopted in full.

22

It is further ordered that just compensation for the taking of the Property is

23

$1,100,000, plus another $104,000 for the mineral estate (as separately agreed to by the

24

parties), for a total of $1,204,000. The Clerk of Court is directed to issue a check in an

25

amount corresponding to the funds still held by the Clerk of Court in this case to the Law

26

Offices of Kermitt L. Waters (ECF Nos. 10, 85).

27
28
20

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1

It is further ordered that Plaintiff’s motion to adopt in part and modify in part the

2

Commission’s Report (ECF No. 659) is granted in part, and denied in part, as explained

3

in this order.

4
5
6
7
8

It is further ordered that Landowners’ objections to the Commission’s Report (ECF
No. 660) are overruled, and their request to modify the Report in part is denied.
The Clerk of Court is directed to enter judgment in accordance with this order and
close this case.
DATED THIS 27th Day of August 2020.

9
10
11

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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Appendix A

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3
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1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

UNITED STATES OF AMERICA,

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

6
Plaintiff,
7
8
9
10
11

v.

COMMISSION’S FINDINGS OF FACT
AND CONCLUSIONS OF LAW

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

12
13
14
15
16
17
18
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20
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25
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1

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1

TABLE OF CONTENTS

2

I.

INTRODUCTION ...............................................................................................................3

3

II.

FINDINGS OF FACT .........................................................................................................5

4

A.

Joint Pretrial Order ..........................................................................................................5

B.

Commissions Finding Of Fact .........................................................................................9

5
6
7

III.

CONCLUSIONS OF LAW ........................................................................................... 15
Landowners’ Proposed Large-Scale Tourism Use was Speculative, Not Reasonably

8

A.

9

Probable, at the Date of Value ............................................................................................... 16

10

1.

Demand Requires Consideration of Price................................................................. 21

2.

Mr. DiFederico Otherwise Did Not Support His $400 Entrance Fee ........................ 25

13

3.

Mr. DiFederico Failed To Support That Visitors Would Pay $50 Per Person On

14

Knickknacks ...................................................................................................................... 28

15

4.

16

Special Use Permit Or Zone Change Necessary For Large-Scale Commercial Tourism And

17

Commercial Retail............................................................................................................. 32

11
12

Landowners Failed To Establish That Lincoln County Would Have Issued The

18

B.

19

Taking As A Rural Recreational Retreat ................................................................................ 39

20
21

C.

Mr. Neville Concluded That The Groom Mine Had A Value Of $254,000 At The Date Of

Landowners Did Not Present Other Rural Recreation Sales Or Challenge Mr. Neville’s

Sales-Comparison Analysis ................................................................................................... 40

22
23
24

D.
IV.

Just Compensation ......................................................................................................... 41
CONCLUSION ............................................................................................................. 43

25
26
27
28

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2

I.

INTRODUCTION
This is a condemnation action filed by the United States for the taking of approximately

3

400 acres of patented and unpatented mining claims in Lincoln County, Nevada, known as the

4

“Groom Mine.” Commission Instruction No. 1 (ECF No. 600). Chief Judge Du selected a land

5

commission (“Commission”) to determine just compensation for the taking pursuant to Rule

6

71.1(h) of the Federal Rules of Civil Procedure on September 17, 2019. Order (ECF No. 515).

7

The Groom Mine consists of six patented mining claims totaling 87.49 acres and 15

8

unpatented mining claims totaling approximately 309.9 gross acres. Id. The Commission has

9

been instructed that the patented mining claims are the equivalent of fee simple ownership, and

10

that the surface of the unpatented mining claims can only be used for mining related activities

11

and to access patented claims. Id. The only issue the Commission is to decide is how much the

12

United States should pay for the property it has taken. Id. The Commission was explicitly

13

instructed that it may not decide any questions or issues related to the validity of the taking, or

14

the value or contributory value of any mineral interest to the Groom Mine which is outside the

15

scope of the proceedings before the Commission. Id.

16

This unanimous report of findings of fact and conclusions of law is issued pursuant to

17

Rule 71.1(h)(2)(D). The Court has instructed that conclusory findings alone are insufficient.

18

Commission Instruction No 5. However, the Commission’s report “need not include detailed

19

findings on all contested issues.” Id. Rather, the report must show the pathway the Commission

20

took through the maze of conflicting evidence, which at the very least consists of demonstrating

21

the reasoning used in deciding on the award, the standard of valuation the Commission tried to

22

follow, and the lines of testimony the Commission adopted. Id. The Commission was instructed

23

it need not resolve every contested issue of fact or make subsidiary findings of fact but should

24

make specific findings as to the matters on which valuation was based, show how it applied the

25

principles of law in reaching its ultimate conclusion and state the reasons for arriving at its

26

valuation. This includes our finding on the highest and best use of the property. Id. The

27

Commission was instructed that just compensation means the fair market value of the property

28

on the date of taking. Commission Instruction No. 8. Although there are generally three

3

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recognized approaches to ascertain market value, the parties agreed one was not an available

2

method, and one approach was excluded in this case. Commission Instruction No. 9.

3

Accordingly, the Commission was instructed it must ascertain the fair market value of the

4

property utilizing the comparable sales approach. Id.

5

At trial both parties offered expert and other evidence concerning the highest and best

6

use of Groom Mine on the stipulated date of value, September 10, 2015. Both sides presented

7

expert MAI opinion testimony on just compensation for the taking based on the price per acre

8

due to the Landowners for the 87.49 acres comprising the patented mining claims.

9

The United States contended that the highest and best use of the Groom Mine was its

10

existing use at the time of taking as rural residential, and that just compensation for the taking

11

was $254,000. The United States’ appraiser opined that comparable substitute sales of rural

12

recreational property in the area of the Groom Mine sold for between $1,668 per acre and

13

$10,000 per acre. He offered testimony on which of his five comparable sales of rural residential

14

property were superior or inferior to the Groom Mine. He testified the Groom Mine would sell

15

for between $2,303/acre and $2,953/acre and concluded the market value on the date of value

16

was $2,900/per acre or $254,000 ($2900 x 87.49 = $253,721 rounded to $254,000).

17

Landowners contended that the highest and best use of the Groom Mine was tourist

18

commercial—“a use where 250 people a day visit the Property for a fee, with no capital

19

improvements, drawing on the established market interest in, and demand to see Area 51 and

20

drawing on the regional tourism hub of Las Vegas.” Landowners’ Proposed Findings of Fact

21

and Conclusions of Law (“FFCL”) (ECF No. 654), p. 5, ll 13-18, ⁋⁋ 140, 215. Based on his

22

determination of highest and best use Landowners contended the just compensation owed by the

23

United States was $49,870,000. Landowners’ MAI appraiser testified the Groom Mine had the

24

potential for generating $41,062,500 in annual tourist revenue because it is the only private

25

property in the world with a clear and unobstructed view of the Air Force operating base

26

commonly referred to in the popular culture as Area 51. Landowners’ appraiser testified that

27

there were no other large acreage properties with tourist commercial highest and best use in

28

Lincoln County or other rural Nevada counties surrounding Lincoln County. He therefore

4

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selected sales of tourist commercial properties in the Las Vegas metropolitan area to find similar

2

sales with a similar highest and best use and potential to draw visitors similar in number as the

3

Subject Property. Landowners’ Proposed FFCL, ⁋ 268. He testified comparable tourist

4

commercial properties in the Las Vegas metropolitan area would sell for between $125,320 per

5

acre and $1,187,931 per acre. After making adjustments to his selected comparable sales, he

6

concluded the fair market value on date of taking “was $570,000/acre for the patented acres with

7

the unpatented acres contributing to that value.” Landowners’ Proposed FFCL, ⁋ 301. ($570,000

8

x 87.49 = $49,870,000).
The Commission was instructed that highest and best use “is not necessarily what the

9
10

owner was using the property for at the time of taking. However, in the absence of proof to the

11

contrary, the current use is presumed to be the best use.” Commission Instruction No. 13. For

12

the reasons explained in this report, the Commission finds that the highest and best or most

13

profitable use on the date of value was its existing rural residential use. Landowners did not

14

present sufficient evidence to overcome the presumption that the property’s existing use on the

15

date of value was its highest and best use. Although Landowners presented evidence to the

16

contrary, they did not meet their burden of showing by a preponderance of the evidence that

17

there was market demand or the prospect of market demand for their proposed large-scale tourist

18

commercial use in the reasonably foreseeable future.

19

II.

FINDINGS OF FACT

20

A.

Joint Pretrial Order

21

The parties stipulated in their Joint Pretrial Order (ECF No. 566) that the following facts

22

are admitted and required no proof at trial. The Commission therefore accepts these facts as true,

23

and binding on the parties.

24

1.

This is a case to determine the just compensation for the taking of approximately

25

400 acres of patented and unpatented mining claims known as the “Groom Mine” in Lincoln

26

County, Nevada (the “Property”). Stipulated Fact No. 1.

27
28

2.

The United States exercised its power of eminent domain and took the Property

on September 15, 2015. Stipulated Fact No. 2.

5

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1

3.

The date of taking in this case is September 15, 2015; however, the parties agree

2

that the date of value is September 10, 2015 (“Date of Value”) – the date the United States filed

3

its Complaint in Condemnation. Stipulated Fact No. 3.

4
5

4.

Just compensation is the fair market value of the Property on the Date of Value.

Stipulated Fact No. 4.

6

5.

The United States took the Property for the public purpose of operating the

7

military test and training facility known as the Nevada Test and Training Range (“NTTR”).

8

Stipulated Fact No. 5.

9

6.

On October 17, 1984, Congress enacted Public Law 98-485 (“1984 Withdrawal”),

10

which authorized the withdrawal of 89,600 acres of federal land in Lincoln County, Nevada,

11

from public use for military purposes (“1984 Withdrawal Area”). However, the 1984

12

Withdrawal was made “[s]ubject to valid existing rights,” such as the patented and unpatented

13

mining claims comprising the Property. The legislative history from the 1984 Withdrawal also

14

confirms that the Property was not within the scope of the 1984 Withdrawal. Stipulated Fact No.

15

6.

16

7.

Prior to the 1984 Withdrawal, the Federal land surrounding the Property was open

17

to the public and administered by the United States Department of the Interior, Bureau of Land

18

Management. Stipulated Fact No. 7.

19

8.

After the 1984 Withdrawal, the Property was a private inholding within the 1984

20

Withdrawal Area from enactment of Public Law 98-485 until the taking in 2015. Stipulated Fact

21

No. 8.

22

9.

For valuation purposes in this case, a buyer of the Property could be granted

23

permission to enter the NTTR to access the Property for themselves, their employees, and

24

business visitors. The Air Force also would not prohibit the number of persons allowed to access

25

the Groom Mine, nor would the Air Force constrain or interfere with access to the Property

26

beyond those basic restrictions applicable to anyone seeking entry to the NTTR. Stipulated Fact

27

No. 9.

28

10.

The Property generally provides an unobstructed and elevated view, from six to

6

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1

seven miles away, of improvements at a remote operating location on the far side of dry Groom

2

Lake. While not a term used by the Air Force, these improvements are referred to by the

3

Landowners as Area 51. Stipulated Fact No. 10.

4

11.

The Property generally provides an unobstructed view of classified national

5

defense missions occurring within the NTTR and its remote operating locations. Stipulated Fact

6

No. 11.

7

12.

The Property is located in Lincoln County, Nevada. Stipulated Fact No. 12.

8

13.

The Property is located at the southern end of the Groom Mountain Range at an

9

elevation ranging from approximately 5000 to 5800 feet. Stipulated Fact No. 13.

10
11

14.

Stipulated Fact No. 14.

12
13

The Property is located approximately 150 road miles from downtown Las Vegas.

15.

The Property is located approximately 39 road miles from the closest town,

Rachel, Nevada. Stipulated Fact No. 15.

14

16.

The nearest rail connection is in Caliente, Nevada. Stipulated Fact No. 16.

15

17.

The Landowners’ family has owned the Property since approximately 1885.

16

Stipulated Fact No. 17.

17

18.

The Property consists of six patented mining claims totaling approximately 87.49

18

acres and 15 unpatented mining claims totaling approximately 309.9 gross acres. Stipulated Fact

19

No. 18.

20

19.

A patented mining claim is one for which the federal government has passed its

21

title to the claimant, making it private land equivalent to fee simple ownership. Stipulated Fact

22

No. 19.

23

20.

An unpatented mining claim is Federal land containing a mineral for which a

24

claimant has asserted a right of possession. This right is limited to the extraction and

25

development of the mineral and title remains with the Federal Government. Stipulated Fact No.

26

20.

27
28

21.

The surface of unpatented mining claims can only be used for mining related

activities and to access patented claims. Stipulated Fact No. 21.

7

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1

22.

As of the Date of Value, there was water present on the Property but the Property

2

did not include any adjudicated water rights as the Groom Lake Valley Basin has not been

3

adjudicated. Stipulated Fact No. 22.

4
5

23.

As of the Date of Value, there were nine cabin structures on the Property and

several miscellaneous structures. Stipulated Fact No. 23.

6

24.

There are inactive mineral processing features on the Property, including

7

historical prospect pits, a main shaft, hoist/headframe remnants, open mine shafts and tunnels,

8

and the remains of a former mill which was destroyed in 1954. Stipulated Fact No. 24.

9

25.

As of the Date of Value, the Landowners had not sought to have the

10

improvements on the Property receive any designation as historic structures, such as listing on

11

the National Register for Historic Places. Stipulated Fact No. 25.

12
13

26.

As of the Date of Value, the Property was not serviced by public utilities.

Stipulated Fact No. 26.

14

27.

For calendar years 2007-2014, according to U.S. Air Force records, Defendant

15

Landowners and their guests visited the Property between five to sixteen times each year. These

16

visits typically were a few days in length (e.g., a long weekend). The shortest such visit was one

17

day in length, and the longest such visit was nine to ten days in length. Stipulated Fact No. 27.

18
19

28.

29.

The Property has not been used for any commercial activities nor generated

No. 28.

20
21

As of the Date of Value, the Property was zoned A5-Agricultural. Stipulated Fact

income since 1956. Stipulated Fact No. 29.

22

30.

The Landowners never sought to sell any portion of the Property nor did they

23

receive unsolicited written offers to purchase any portion of the Property in the 10 years prior to

24

the Date of Value. Stipulated Fact No. 30.

25

31.

The tourist commercial use proposed by Landowners’ expert, Tio DiFederico,

26

involving no capital improvements, is physically possible. Stipulated Fact No. 31.

27

///

28

///

8

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1

B.

Commission’s Findings Of Fact

2

32.

The topography is steep in parts. Def. Ex. 51 (Draft EIS) at TDG WF 001924;

3

Vol. IV, Tr. 240:14-17 (DiFederico). The property has a desert climate, and the vegetation on

4

the property is consistent with the surrounding desert terrain. See Def. Ex. 51 at TDG WF

5

001945.

6

33.

Most of the cabins date to the early 1900s and are in poor to average condition.

7

See ECF 574 (Joint Proposed Site Visit Instructions) at 5-6 (Stop 1 description); Vol. III, Tr.

8

22:13-22 (Sheahan); Vol. VI, Tr. 176:23-177:2 (Neville); Pl. Ex. 306 (photos).

9
10
11
12
13

34.

The A-5 zoning designation permits agricultural related uses as of right, not

commercial tourism. Pl. Ex. 295(a) at § 13-5L-2.
35.

The Groom Mine did not have a special use permit of any kind at the Date of

Value. Vol. III, Tr. 140:13-23 (Sheahan).
36.

The Groom Mine is located approximately 150 road miles from downtown Las

14

Vegas, and the drive from Las Vegas to the Groom Mine takes about 2.5 hours. Stip. Fact No.

15

19; Vol. VI, Tr. 171:8-9 (Neville). The last 27 miles are off State Highway 375. Vol. VI, Tr.

16

171:22-24 (Neville). To reach the property from State Highway 375, a vehicle must travel: 15

17

miles on a gravel road; then one mile on a paved road to a NTTR security checkpoint; then eight

18

miles on a paved road inside the NTTR. The last three miles are on a narrow dirt road. Id., Tr.

19

171:12-21.

20

37.

The nearest town, Rachel, is about 52 miles from the Groom Mine (via the back

21

gate). Vol. VI, Tr. 182:16-183:2 (Neville). Rachel has a population of roughly 60. Id., Tr.

22

183:3-4 (Neville). There is no school, gas station, grocery store, or post office in Rachel. Id., Tr.

23

183:5-14 (Neville). The only commercial establishment in Rachel is the Little A’Le’Inn, a

24

small, alien-themed restaurant and gift shop. Vol. VI, Tr. 183:15-16 (Neville); Vol. IV, Tr.

25

154:3-6 (Harris).

26

38.

The nearest medical facility to the Groom Mine is in Caliente, about an hour

27

away. Vol. V, Tr. 232:6-20 (DiFederico). Any critically injured or ill person at the Groom Mine

28

would need to be taken to Las Vegas or to St. George, Utah. Def. Ex. 66 at TDG Rpt 00061;

9

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1

Vol. V, Tr. 232:21-24 (DiFederico).

2
3

39.

Lincoln County, where the property is located, has a total population of about

5,000. Vol. V, Tr. 187:8-10 (DiFederico); Vol. VI, Tr. 180:25-181:1 (Neville).

4

40.

Before 1984, the public could enter upon and hike the BLM land surrounding the

5

Groom Mine, including land south of the Groom Mine that is closer to the remote operating

6

location near Groom Lake. Vol. III, Tr. 176:4-19 (Sheahan). There was no charge to access this

7

BLM land. Id., Tr. 176:4-21 (Sheahan).
Landowners’ Use Of The Groom Mine Prior To The Taking

8
9
10

41.

mining operations ended. Vol. III, Tr. 143:4-6 (Sheahan).

11
12

Landowners stopped residing full-time at the Groom Mine in the mid-1950s when

42.

For the 60 years preceding the taking, Landowners used the Groom Mine as an

occasional recreational retreat.1 Vol. III, Tr. 157:21-158:6 (Sheahan).

13

43.

For calendar years 1979-1986, according to Air Force correspondence,

14

Landowners visited the Groom Mine about four times per year with a duration of between two

15

and 10 days per visit. Pl. Ex. 18. Landowners did not dispute this frequency of visits in

16

responsive correspondence back to the Air Force. Pl. Ex. 20; Vol. III, Tr. 156:12-16 (Sheahan).

17
18

44.

Popular culture interest in “Area 51” began in the 1980s and reached its apex in

the 1990s. Vol. III, Tr. 141:25-142:3 (Sheahan); Vol. VI, Tr. 52:12-14 (Moeder).

19

45.

Landowners never pursued Groom Mine tourism in the 1990s or at any time

20

thereafter. Landowners never charged anyone to visit the property. They never developed any

21

business plans for a tourism use. They never contacted potential tourism operators or investors.

22

They never attempted to obtain financing for a tourism operation. They never improved the

23

property for a tourism use. And, before the taking, they never attempted to change the A-5

24

agricultural zoning designation or obtain a special use permit necessary for commercial tourism.

25

Vol. III, Tr. 139:2-20, 140:13-141:12 (Sheahan).

26
27
28

46.

No one approached Landowners about buying the Groom Mine for a potential

1

Landowners also performed mining assessment work on their occasional visits to the property. Vol.
III, Tr. 157:21-158:6 (Sheahan). Landowners needed to perform this assessment work in order to
maintain their unpatented mining claims. Id., Tr. 158:7-12 (Sheahan).

10

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1

tourism use. Id., Tr. 141:16-20; Stip. Fact No. 39.

2
3

47.

It is uncontested that the Subject Property, is the only private and legally

accessible property in the world with a clear and unobstructed view of Area 51.

4

48.

The Commission finds that in this case, exclusion of the Project influence means

5

that the fair market value of the Property is to be determined without consideration of: the

6

Government’s need to acquire the Property as a “buffer area for the NTTR” or the fact that “use

7

of the NTTR has increased in complexity and tempo over the last several decades” to a point

8

where the “Air Force can no longer test and train securely while civilians are present at the

9

Property due to its location inside the NTTR and increasing national security demands.”

10

However, the Commission may consider that “the Property was a private inholding within the

11

1984 Withdrawal Area” with access and A-5 zoning until the taking in 2015. Stipulated Fact No.

12

10 at ECF No. 566 at 4.

13

49.

Area 51 is a secret military base located on Groom Lake that has become a

14

location widely believed in a segment of the popular culture to be where UFOs or aliens have

15

been stored by the Government and where alien technology is tested. Tr. Trans. Vol. 4 at 160:16-

16

20 and Vol. 5 at 9-24:1. More specifically, it is believed in a segment of the popular culture that

17

in the 1950’s a UFO crashed in Roswell, New Mexico and those remains were transported to

18

Area 51 for testing. Pltf. Ex. 536 and Def. Ex. 68:380-382. It is known that the U-2 and Oxcart

19

spy plane programs were run at Area 51. Def. Ex. 22:TDG WF 001428. The Government

20

conceded that the Landowners proved that people are interested in Area 51. Tr. Trans. Vol. 8 at

21

46:6.

22

50.

Evidence produced at trial confirmed Area 51 has been a national and

23

international cultural phenomenon and place of significant interest for several decades. Tr.

24

Trans. Vol. 5 at 9-24:1 and Def. Ex. 67. Evidence was admitted showing that outside surveys

25

from 2012 by the National Geographic channel indicated more than one-third of respondents said

26

“they believed aliens have visited Earth, and almost half were not sure. Only 17 percent said

27

they did not believe so.” Def. Ex. 69a. And, that people who are interested in UFOs and aliens

28

11

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1

are also interested in Area 51. Def. Ex. 68 opening page.2 Def. Ex. 69a.

2

51.

[LO 37]

Evidence was provided that the Google hits for “Area 51” range

3

anywhere from 38 million to over 59 million. Tr. Trans. Vol. 5 at 9:8-19. Evidence was

4

presented that there are over 1 million YouTube videos relating to Area 51 and “one video that

5

has 9.9 million views” and approximately 20 other videos that had 3 million views. Tr. Trans.

6

Vol. 5 at 17:19-18:4.

7

52.

The evidence produced at trial demonstrated that there have been numerous

8

television shows, documentaries, movies, books, and merchandise which relate to Area 51. Def.

9

Exs. 4, 67, 68 and Tr. Trans. Vol. 5 at 9-13. Notable shows, movies, books and merchandise

10

include, without limitation: “Ancient Aliens;” “the X-Files;” the “Independence Day” movie

11

franchise; the “Indiana Jones” movie franchise; the book “Area 51 An Uncensored History of

12

America’s Top-Secret Military Base” authored by Annie Jacobsen 3 and on the National Best

13

Seller’s List; and, Bud Light’s production of Area 51 themed beer cans. Def. Exs. 4, 67, and 68.

14

Evidence was adduced that prior to moving to Summerlin in 2019, Las Vegas’ Triple-A minor

15

league baseball team was named “The Las Vegas 51’s” in reference to Area 51. Tr. Trans. Vol.

16

7 at 144:8-9.

17

53.

Evidence introduced by the Government confirms that prior to its withdrawal

18

“since 1993, visitation to the White Sides area [an area separate and apart from the 1984

19

Withdrawal Area] has increased, primarily as a result of media attention and networking among

20

Unidentified Flying Object (UFO) and military viewing groups.” Pl’s Ex. 056:LO 00000388

21

(AS) (internal citations omitted).

22

54.

Evidence was presented that in July of 2019, 2 - 3.5 million people signed up on

23

Facebook to “Storm Area 51.” Tr. Trans. Vol. 4 at 157:11-15 and Vol. 5 at 49:6-8. This was

24

widely covered by national news outlets. This evidence was not contravened by the

25

Government.

26
27
28

Copies of the book “Area 51: An Uncensored History of America’s Top Secret Military Base” by Annie
Jacobsen were provided for the Commissioners at trial. Def. Ex. 68.
3
Ms. Jacobsen is an author and also a producer involved in the popular Jack Ryan series on Amazon
among other works. Tr. Trans. Vol. 5 at 10:24-11:3.
2

12

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1

55.

Government witness, Col. Zuhlke confirmed that from the 1984 Withdrawal

2

“there’s no limit on how many people the Sheahan Family can bring onto their property” and

3

“after the 1984 withdrawal hearing, there was nothing in the record which limited when the

4

Sheahan Family could come onto the property.” Tr. Trans. Vol. 6 at 34:23-35:1 and 37:15-19.

5

56.

The Commission experienced the “basic restrictions” for the Site Visit and the

6

“basic restrictions” consisted of a background check and security screening at the Air Force gate

7

similar to standard airport screening.

8
9
10
11

57.

The Commission finds that substantial evidence was submitted to confirm that as

of the Date of Value, the Subject Property had full access rights, consistent with Stipulated Fact
No. 12.
58.

As part of the 1984 Withdrawal, on June 1 and 5 of 1984, the Air Force issued

12

letters to then Congressman Harry Reid and Congresswoman Barbara Vucanovich concerning

13

the effect of the 1984 Withdrawal on the Property. Def. Exs. 55 and 56. These letters were

14

signed by Colonel Albert L. Barbero from and on behalf of the United States Air Force. Id. In

15

these letters the Air Force stated, “[t]he Sheahans will continue to have access to the Groom

16

Mine. Their legal rights to own, operate and sell the mine are not affected by the proposed land

17

withdrawal.” Id. The Air Force recognized that it “would have no authority to deny access to

18

any employees or business visitors of the Sheahans.” Id. And, that the “Air Force could only

19

terminate the Sheahans’ rights to Groom Mine by initiating condemnation proceedings or

20

purchasing the property. At this time the Air Force has no intention of taking such action.” Id.

21

The Air Force summarized that “the Sheahans possess legal rights regarding the Groom Mine

22

which the Air Force has no plans to interrupt.” Id.

23

59.

Also, as part of the 1984 Withdrawal, on July 6, 1984, the Deputy Assistant

24

Secretary of the Air Force, James F. Boatright, represented directly to the Landowners on behalf

25

of the Air Force “to assure you” that “by its proposed [1984] withdrawal …. [the Air Force] has

26

no intention of encroaching upon your established rights or entitlements.” Def. Ex. 57 (emphasis

27

added). “Your legal rights to own, operate and sell your mine are not affected by the proposed

28

land withdrawal.” Id. The Air Force stated it “would not deny access to your family, any of

13

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1

your employees or business visitors.” Id. “The Air Force could only terminate your rights

2

through condemnation or purchase of the property. We have no intention of initiating such

3

actions.” Id.

4

60.

As further evidence of the Subject Property’s access rights, the Landowners

5

admitted deposition testimony from Terry Ochal (NTTR Liaison Officer), disclosed by the

6

Government as the individual with “[i]nformation pertinent to landowner and guest access…

7

based on personal and organizational knowledge.” Def. Ex. 254:2.4 Government Witness, Col.

8

Zuhlke, confirmed that for purposes of these proceedings, Mr. Ochal was the individual who

9

would have the most knowledge from the Air Force about what the access conditions were as of

10

the Date of Value. Tr. Trans. Vol. 6 at 30:6-24.

11

61.

Mr. Ochal testified that: he had worked with the Sheahans regarding access to the

12

Property from 2007 to 2015 which was carried over from his predecessor (Tr. Trans. Vol. 3 at

13

225:10-14, 226:4-6, 227:25-228:10); his job was to ensure that their visits in and out went

14

smoothly (Tr. Trans. Vol. 3 at 227:10-24); “the Sheahans had the right of access to their property

15

for themselves, their family, employees and business visitors” (Tr. Trans. Vol. 3 at 232:16-19);

16

the Air Force would not “obstruct” access to the Property (Tr. Trans. Vol. 3 at 232:20-23); the

17

Sheahans could invite any individuals with clear backgrounds to visit the Property (Tr. Trans.

18

Vol. 3 at 247:6-10); prior to the taking, the Sheahans and their invitees were not required to go

19

through any metal detectors and were not searched when accessing the Property (Tr. Trans. Vol.

20

3 at 245:18-25); the stop at the Air Force security gate was “just a name check” that would only

21

take a “few minutes per vehicle” (Tr. Trans. Vol. 3 at 236:13-22); the Sheahans and their invitees

22

could bring firearms, cameras and cell phones to their Property prior to the taking (Tr. Trans.

23

Vol. 3 at 236:23-237:6); that in some instances 35 people or more invited by the Sheahans would

24

visit the Property at a given time (Tr. Trans. Vol. 3 at 242:15-18); and, people that were not

25

invited by the Sheahans could not gain access beyond the Air Force security fence (Tr. Trans.

26
27
28

Def. Ex. 254 is Deposition Ex. 2 to Mr. Ochal’s deposition which was provided by Landowners’
counsel to the Commission as one of the exhibits referenced in Mr. Ochal’s designated deposition
segments played on day 3 of trial. Counsel for the Government had no objection to the admission of
Def. Ex. 254. Tr. Trans. Vol. 3 at 222:3-8.
4

14

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1

Vol. 3 at 242:22-243:5).

2

62.

Mr. Ochal further testified that from approximately 1984 to 2015, the

3

Landowners, as a courtesy, provided the Air Force with a list of visiting individuals and

4

advanced notice of visits, to prevent any delays at the NTTR security gate, as the Air Force was

5

not permitted to deny access to the Landowners, their family, their employees or the

6

Landowners’ business visitors. (Tr. Trans. Vol. 3 at 241:22-242:2). Mr. Ochal testified

7

consistently with Mr. Sheahan that this courtesy was voluntary. Tr. Trans. Vol. 3 at 232:24-

8

233:18, 237:7-14 and 248:11-16.

9

63.

Mr. Sheahan testified that on and before the Date of Value water was available on

10

the Property from natural springs and a well, that the water had been used continuously by the

11

Sheahan Family, and that water was always available. Tr. Trans. Vol. 3 at 96:2-5 and 99:9-16.

12

64.

However, Mr. Sheahan testified that for many decades the Property was served by

13

electricity through a generator and battery banks (Def. Ex. 7.4b and Tr. Trans. Vol. 3 at 102:18-

14

22 and 103:13-104:13); that water was always diverted from springs on the Property and used to

15

fill tanks which served the buildings on the Property and provided ample water for uses on the

16

Property (Def. Exs. 7.3a and 7.7G and Tr. Trans. Vol. 3 at 100:19-101:7); and, gas/propane was

17

used on the Property for hot water heaters and stoves (Def. Ex. 7.4c and Tr. Trans. Vol. 3 at

18

101:18-20).

19

65.

Both sides’ appraisers testified that the existing use of a property is not always its

20

highest and best use. Mr. Neville understood that “some people just don’t use their property to

21

the highest and most profitable use sometimes.” Tr. Trans. Vol. 7 at 30:17-19. Mr. DiFederico

22

similarly testified that the highest and most profitable use of property is not limited to the use at

23

the time of the taking and that “people sometimes just don’t use their properties to their highest

24

and best use.” Tr. Trans. Vol. 4 at 245:24-246:11.

25

III.

26

CONCLUSIONS OF LAW
66.

Landowners contended that the Groom Mine should be valued based on a tourism

27

operation involving 250 daily customers, coming on the Groom Mine 365 days per year, with

28

each visitor paying an entrance fee of $400 and an additional $50 for knickknacks. Vol. V, Tr.

15

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43:2-6; 47:9-12 (DiFederico). According to Landowners’ expert appraiser, Mr. DiFederico, this

2

tourism operation would have generated annual gross revenue of $41.1 million (91,250 annual

3

paying customers x $450 = $41,062,500). Id., Tr. 47:9-12 (DiFederico).

4

67.

Landowners did not put forward any market evidence supporting the financial

5

feasibility of an alternative commercial tourism scenario. The Commission may not speculate as

6

to whether some alternative tourism scenario may have been probable in the near future. See

7

Instruction No. 15 (“An opinion of market value must be supported by market evidence.

8

Evidence must not be vague or speculative, nor should you consider any testimony of mere

9

possibilities unsupported by market evidence.”).

10

68.

The Commission also may not attempt to value some “smaller scale” tourism

11

scenario (e.g., where tourists come to the property one weekend per month) because Landowners

12

did not put forward any sales to value such a “small scale” commercial tourism use. Mr.

13

DiFederico selected his five comparable sales because those properties had the potential of

14

generating revenue of $41.1 million annually. Landowners’ counsel made this clear in closing:

15
16
17
18
19

What the appraiser is required to do is go find properties that have similar earning
potential as that property that’s being appraised…. And in this case, that’s a large
tourist commercial property…. Again, if you have a property that you’ve
determined [] has the potential to earn $41 million a year, you have to go find
something similar that has the potential to earn a similar income.
Vol. VIII, Tr. 37:25-38:4, 39:13-16.
69.

For all of these reasons, the issue is not whether any commercial tourism use was

20

reasonably probable at the Date of Value (i.e., physically possible, legally permissible,

21

financially feasible, and maximally productive). The issue is whether Landowners have

22

supported their proposed large-scale tourism use involving bringing 91,250 people to the Groom

23

Mine, paying $450 each, year after year.

24

A.

25
26

Landowners’ Proposed Large-Scale Tourism Use was Speculative, Not
Reasonably Probable, at the Date of Value

70.

Landowners retained a Nevada MAI appraiser, Keith Harper, to provide an

27

appraisal review of the appraisal done by the government’s appraiser, Warren Neville. In

28

response to questions by Commissioner Pro, Mr. Harper testified that except for his analysis of

16

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highest and best use, Mr. Neville’ appraisal complied with standard practices, USPAP, and the

2

Uniform Standards of Federal Land Acquisitions (“Yellow Book).

3

71.

Mr. Harper opined that Mr. Neville did not perform a sufficient financial

4

feasibility analysis to render a conclusion that a tourist commercial use was speculative. Tr.

5

Trans. Vol 7 at 152:8-18; Landowner’s FFCL, 239.

6

72.

The Commission has been instructed that “[i]n determining whether a proposed

7

use was needed or likely to be needed in the reasonably near future, you must determine, based

8

on a preponderance of the evidence, that there was market demand or the prospect of market

9

demand for such use in the reasonably near future. The demand, or market, requirement means

10

that the highest and best use of a property must be financially feasible. A proposed use should be

11

considered only to the extent that the prospect of demand for such use would have affected the

12

price that a willing buyer would have offered for the property as of the taking.” Commission

13

Instruction No. 13, (ECF No. 600 at 16).

14

73.

The Commission finds Landowners have not met their burden of establishing by a

15

preponderance of the evidence that there was market demand or the prospect of market demand

16

for Landowner’s proposed large-scale tourist commercial use in the reasonably foreseeable

17

future for the reasons explained below.

18

74.

Landowners’ speculative proposed tourism use cannot be the basis for

19

determining the Groom Mine’s market value. Vol. VII, Tr. 151:19-21 (Harper) (“Q. And do

20

you think a tourist commercial use of the subject property, as of September 10, 2015, was

21

speculative? A. Well, I don’t know that it was -- well, yes.”).5 However, Mr. Harper also

22

testified that all land use is speculative until the financial feasibility analysis is complete.

23

75.

Landowners’ decision not to pursue any tourism use at the Groom Mine in the

24

decades preceding the taking demonstrates that tourism was not reasonably probable in the

25

reasonably near future as of September 10, 2015.

26
27
28

76.

Landowners had 25-30 years to attempt to profit from the Groom Mine’s

Mr. Harper went on to testify that “any use is speculative, even the rural residential.” Vol. VII, Tr.
151:21-22 (Harper). But there is nothing speculative about how Landowners actually used the property
for 60 years prior to the taking.
5

17

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proximity to “Area 51.” Popular culture interest in Area 51 began in the 1980s and reached its

2

apex in the 1990s. Vol. III, Tr. 141:25-142:3 (Sheahan) (“Q. And you would agree that Area 51

3

has been known in popular culture since the 1980s? A. I would say it was a little bit before that,

4

but, you know, it really took off in the mid – early to mid ’80s.”); Vol. VI, Tr. 52:12-14

5

(Moeder) (“Q. And do you know when the interest in Area 51 was at its peak? A. That would

6

be the early to mid 1990s.”).

7

77.

Landowners never pursued Groom Mine tourism in the 1990s, during peak

8

interest in Area 51, or at any time thereafter. Vol. III, Tr. 141:5-15 (Sheahan). Landowners

9

never charged anyone to visit the property; they did not develop any business plans for a tourism

10

use; they did not contact potential tourism operators or investors; they did not attempt to obtain

11

financing for a tourism operation; they did not improve the property for a tourism use; and they

12

did not attempt to change the zoning or obtain a special use permit necessary for commercial

13

tourism. Vol. III, Tr. 139:2-141:1 (Sheahan).

14

78.

Landowners did not receive any offers for the Groom Mine for a potential tourist

15

use, and no one approached Landowners about buying the property for a potential tourism use.

16

Id., Tr. 141:16-20; Stip. Fact No. 39.

17

79.

Market participants do not leave tens of millions of dollars sitting in the desert for

18

decades. As explained by Mr. Neville, “if [a] property is … ripe for development, market forces

19

will seek it out and try to, at least, propose that type of development.” Vol. VII, Tr. 31:10-13;

20

see also Vol. VI, Tr. 52:18-23 (Moeder) (“[O]ne of the questions I get from developers that

21

approach a land investment if it hasn’t been done is why hasn’t it been done. And so the

22

question that would be of interest to a developer is when was the peak interest. When would

23

have been the prime, opportune market time to develop the property.”). Keith Harper,

24

Landowners’ review appraiser, agreed that, “as we all know, the historical use of a property, yes,

25

is a factor in analyzing the property.” Vol. VII, Tr. 136:5-6.

26

80.

Given that there was no demonstrated market interest in developing the Groom

27

Mine for tourism in the 1990s, when there was peak interest in Area 51, it is not reasonable to

28

assume that such development would materialize in 2015, when interest in Area 51 was

18

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declining.

2

81.

The Commission finds Landowners failed to show market demand for their

3

proposed large-scale tourism use. Landowners’ evidence demonstrates only that (a) there is

4

popular culture interest in Area 51, and (b) 16% of Las Vegas tourists take day-trip excursions.

5

Landowners did not establish by a preponderance of the evidence that 91,250 people would pay

6

$400 each to visit Groom Mine for a view of Area 51 year after year.

7
8
9

Interest in Area 51 Does Not Establish Demand
82.

The Groom Mine offers a view, from 6-7 miles away, of a remote Air Force

operating location near dry Groom Lake that popular culture describes as “Area 51.”

10

Landowners put forward evidence that there is popular culture interest in Area 51. They cited

11

Internet search hits, YouTube videos, television shows, movies, books and articles referencing

12

Area 51.

13

83.

General interest in Area 51 does not establish market demand for 91,250 people to

14

visit the Groom Mine. As explained by the United States’ real estate economist and market

15

expert, Nathan Moeder, general interest “doesn’t give a developer or investor the ability to …

16

translate that [interest] to specific numbers to quantify demand. So general interest doesn’t

17

translate to a comfort level for developers and investors.” Vol. VI, Tr. 51:18-22.

18

84.

The “Storm Area 51” events in September 2019 demonstrate that interest does not

19

establish demand. Landowners’ witnesses testified that millions of people signed up to “storm”

20

Area 51. Vol. IV, Tr. 157:11-15 (Harris); Id., Tr. 261:12-14 (DiFederico); see also Vol. VIII, Tr.

21

27:10-14 (Leavitt closing) (“And then when there was even the slightest doubt that people could

22

have an opportunity to see Area 51 illegally in the Storm Area 51 event, 3 million people signed

23

up.· Think about that for just a minute, how many people 3 million people is.”). This interest

24

resulted in Connie Travis staging an event in Rachel at the Little A’Le’Inn, called “Alienstock,”

25

and George Harris staging a separate event in Hiko at the Alien Research Center, called “Area 51

26

Basecamp.” Vol. IV, Tr. 181:12-21 (Harris); Vol. VII, Tr. 79-88 (Mathews). The entertainment

27

at the “Area 51 Basecamp” event included Grammy nominated DJ Paul Oakenfold, “the father of

28

EDM music.” Vol. IV, Tr. 183:22 (Harris). According to Mr. Harris, Mr. Oakenfold typically

19

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“gets paid $350,000 a show” but agreed to perform at Area 51 Basecamp “for free because he’s

2

an alien enthusiast.” Id., Tr. 183:15-16.

3

85.

However, the evidence at trial established that the Area 51 Basecamp event was

4

poorly attended. Mr. Mathews testified that organizers had waived the $51 entrance fee by 9:15

5

p.m. on the first day of the event, prior to Mr. Oakenfold taking the stage. Vol. VII, Tr. 85:15-

6

86:8. Mr. Mathews personally counted about 100 attendees for Mr. Oakenfold’s performance.

7

Id., Tr. 86:9-11, 88:10-12. See Pl’s Ex. 599.

8
9
10

86.

The Commission finds the Storm Area 51 events were financial failures. Mr.

Harris testified that he canceled the second day of the Area 51 Basecamp. Vol. IV, Tr. 187:7-9.
He also admitted that he lost “a lot of money” staging the event. Id., Tr. 187:10-12.

11

87.

The “Alienstock” festival in Rachel, although better attended than Mr. Harris’

12

event, also lost money according to press reports. Vol. V, Tr. 167:11-168:5 (DiFederico). Mr.

13

Mathews testified that most “Alienstock” attendees parked for free across the highway. Vol.

14

VII, Tr. 82:25-83:2. Mr. Mathews counted just 38 cars the evening of Friday, September 20, in

15

the pay lot (and 230 cars parking for free). Id., Tr. 83:3-8.

16

88.

Landowners suggested that the events failed because they were “canceled.”6 See,

17

e.g., Vol. V, Tr. 60:13-14 (DiFederico). But nothing was “canceled.” Vol. VII, Tr. 84:4-5,

18

84:23-85:14, 112:16-113:2 (Mathews). DJ Paul Oakenfold, the “father of EDM music,”

19

performed—and about 100 people were there for it.

20
21
22
23
24
25
26
27
28

Landowners’ incorrect “cancellation” argument relates to the decision by one of the original
promoters of Alienstock, Matty Roberts, to disassociate himself with the Rachel event and to stage a rival
event in Las Vegas. Mr. Roberts initially said that Alienstock was canceled; however, Connie West said
that she would continue with the Alienstock event at the Little A’Le’Inn in Rachel (and Alienstock did, in
fact, go forward). See Vol. VII, Tr. 85:2-6 (Mathews) (“So what I read in the newspapers was that the
original organizer was planning a separate event here in Las Vegas, but Connie West, who was partnering
with the original organizer, she said that she was going to continue with the event [in Rachel].”). Mr.
Harris’s Area 51 Basecamp event was entirely separate from Alienstock. Id., Tr. 85:9-14 (“And Judge
Pro raised a good point.· So the cancellation issue or rival events in Las Vegas, that related to the events
in Rachel; right? A. Yes. Q. And not the Alien Research Center? A. No.”); Vol. IV, Tr. 181:12-21
(Harris).
6

20

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1
2

1. Demand Requires Consideration of Price
89.

In addition to relying on general interest in Area 51 to support market demand,

3

Landowners relied on a 2015 survey by the Las Vegas Convention and Visitors Authority

4

(“LVCVA”) indicating that 16% of Las Vegas tourists (or 6.9 million people annually) take a

5

day trip as part of their Las Vegas stay. Def. Ex. 71 (LVCVA Visitor Profile Study); Vol. V, Tr.

6

27:16-28:2 (DiFederico). Mr. DiFederico testified, without any market evidence or support, that

7

the Groom Mine could capture 4% of these excursions, a number between the draw of Red Rock

8

Canyon and Laughlin. Id. Tr. 38:1-5 (“Q. And so why did you choose the 4 percent between

9

Laughlin and Red Rock for this property here? A. It was just – I’m not a huge Laughlin fan

10

maybe. And I just thought we could do, you know, the demand would be higher than that.”).

11

90.

According to Mr. DiFederico, 4% of the nearly 7 million Las Vegas visitors who

12

take day trips established 277,568 tourists would visit the Groom Mine annually Id., Tr. 38:6-14.

13

Mr. DiFederico then reduced the number of expected Groom Mine tourists by two-thirds, to

14

91,250 expected visitors, to account for logistical obstacles. Id., Tr. 42:11-19 (“I wanted to use

15

common sense and I said I think you should bring five groups of 50 out here…. You can do an

16

hour each…. Now you’re bringing out 250 people a day, which is 91,250, which is a third of the

17

demand. So, what I’ve done is made it realistic.”).

18

91.

In addition to relying on the LVCVA data, Mr. DiFederico also pointed to several

19

comparable tourist properties as demand. These attractions included Roswell, New Mexico, and

20

Grand Canyon West, among several others.

21

92.

Mr. DiFederico’s demand analysis relies on ipse dixit. No facts or data support

22

Mr. DiFederico’s conclusion that Groom Mine would attract fewer visitors than Red Rock

23

Canyon and more visitors than Laughlin. Mr. DiFederico “just thought” Red Rock Canyon

24

“would do a little better” and Laughlin would do worse because “I’m not a huge Laughlin fan

25

maybe.” Vol. V, Tr. 37:1-8, 38:1-5. Mr. DiFederico had no factual basis for his demand

26

conclusion; and it therefore deserves no weight. See Commission Instruction No. 15 (“An

27

opinion of market value must be supported by market evidence.”); see also, e.g., Gen. Elec. Co.

28

v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing… requires a district court to admit opinion

21

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1

evidence that is connected to existing data only by the ipse dixit of the expert.”).

2

93.

In all events, the LVCVA survey does not provide a basis for determining

3

demand. As explained by Mr. Moeder, the LVCVA survey “is at a 50,000 foot level.” Vol. VI,

4

Tr. 50:25-51:2 (“I’ve never seen anybody just use a metropolitan wide survey to quantify

5

demand.”). The survey does not provide any basis for determining demand to come to the

6

Groom Mine. Id., Tr. 59:7-12 (“Every major metropolitan has a convention and visitors bureau

7

where they publish this type of information…. But you don’t translate those into a specific

8

demand for a project.”).

9

94.

Nothing in the LVCVA survey attempts to quantify visitor interest in alien-

10

themed tourism, Area 51, or the Groom Mine. Def. Ex. 71; Vol. VI, Tr. 59:16-20 (Moeder)

11

(explaining that, because the LVCVA survey does not have any question about alien tourism,

12

there is no way to gauge interest in such tourism).7

13

95.

More problematic, Mr. DiFederico failed to consider how price impacts demand.

14

Vol. VI, Tr. 60:23 (Moeder) (“[Demand is] never in a vacuum for investors and developers.”).

15

The more expensive a good (or excursion), the less demand there will be for it. Mr. Moeder

16

explained this basic economic concept:
Q.

18
19
20
21

And so how does price and demand, how does that relationship work with
one another?

A.

17

It’s an elastic relationship. They’re tied together. They go hand in hand.
The price of any good is going to be tied to the demand for it. So the more
expensive a product is, the less number of people that are willing to pay
for it…. So they’re always interlinked. That’s a fundamental question
that developers will always ask themselves is how much are we charging
and what does that do to our demand. Is that market there. Can we push

22
23
24
25
26
27
28

7

Landowners elicited testimony from Mr. Harper that he has used LVCVA data to establish demand.
But Mr. Harper’s testimony underscored that an appraiser’s demand analysis requires consideration of
price and consideration of facts and data specific to the market being studied. Mr. Harper testified that he
used LVCVA data to establish demand for a motel in Laughlin because the LVCVA survey includes
hotel/motel average daily room rates and occupancy rates for the Laughlin market. Vol. VII, Tr. 130:1-10
(“Q. And is it your understanding that LVCVA Visitor Profile Study can also be used to determine
demand? A. Oh absolutely. I use it all the time for demand. I just recently appraised an Extended Stay
Motel in Laughlin. And, believe me, there’s not many people or groups that track data in Laughlin. And
so the LVCVA actually does provide broken out statistics for the Laughlin market, and I relied heavily on
that, the average daily room rate of the hotels and motels in Laughlin, the occupancy rate, the things that
the LVCVA provides.”).

22

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the price and still get the same number of people.

1
2

Id., Tr. 60:8-19.
96.

3
4
5
6

The entrance fees for the attractions Mr. DiFrederico used to support market

demand for visitors to pay $400 each to visit Groom Mine do not support his market demand
analysis. The entrance fee for each attraction is a small fraction of Mr. DiFederico’s hypothetical
$400 entrance fee for the Groom Mine, as shown in the table below:
Supposedly Comparable Attractions Supporting Demand For Groom Mine Tourism

7

Attraction

8

Entrance Fee

Record Cite(s)

Roswell Crash Site

Sold for cattle
ranch

Pl.’s Exs. 556, 556a; Vol. V, Tr. 260:14-262:12
(DiFederico)

Roswell UFO Museum

$5

Vol. V, Tr. 18:14-23,
161:19-21 (DiFederico)

Roswell Festival

FREE

Vol. VI, Tr. 55:10-17 (Moeder)

Alien Research Center

FREE

Vol. V, Tr. 21:11-22:5 (DiFederico);
Vol. IV, Tr. 160:1-3 (Harris)

Little A’Le’Inn

FREE

Vol. V, Tr. 22:6-23,
164:18-24 (DiFederico)

Nevada National Security Site Tour

FREE

Vol. V, Tr. 38:15-23,
163:25-164:8 (DiFederico)

Virginia City

$8

Vol. V, Tr. 40:10-41:1,
165:10-14 (DiFederico)

Oatman

FREE

Vol. V, Tr. 41:10-18,
166:9-12 (DiFederico)

Calico

$8

Vol. V, Tr. 42:1-2,
165:15-19 (DiFederico)

National Atomic Testing Museum
(Las Vegas)

$22

Vol. V, Tr. 18:5-10,
166:4-8 (DiFederico)

Stonehenge

£20

Vol. V, Tr. 39:22-40:3 (DiFederico); Vol. VI,
Tr. 62:16-63:5 (Moeder)

Laughlin

FREE

Vol. V, Tr. 36:11-14 (DiFederico)8

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

8

The Commission may take judicial notice that Laughlin is a city in Southern Nevada, and there is no
cost of admission. Fed. R. Evid. 201.

23

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Supposedly Comparable Attractions Supporting Demand For Groom Mine Tourism

1

Attraction

2

Entrance Fee

Record Cite(s)

Red Rock Canyon

$15 (vehicle)

Vol. V, Tr. 34:22-249

Bryce Canyon National Park

$35 (vehicle)

Vol. V, Tr. 34:1-2 (DiFederico)10

Zion National Park

$35 (vehicle)

Vol. V, Tr. 33:7-12 (DiFederico); Vol. VI, Tr.
67:7-8 (Moeder)

6

Death Valley National Park

$30 (vehicle)

Vol. V, Tr. 30:13-17 (DiFederico)11

7

Grand Canyon National Park

$35 (vehicle)

Vol. V, Tr. 31:3-6 (DiFederico); Vol. VI, Tr.
67:7-8 (Moeder)

Grand Canyon West

$80

Vol. V, Tr. 31:7-32:9, 163:1-9 (DiFederico);
Vol. III, Tr. 191:16-194:6 (Sheahan)

3
4
5

8
9
10
11
12
13

97.

$15/vehicle to enter Red Rock Canyon, does not establish that 91,250 Las Vegas tourists would
pay $400 to go to the Groom Mine.

14
15
16
17
18
19
20

That 200,000 Las Vegas tourists visit Laughlin for free, or that 347,000 pay

98.

Roswell underscores that price and demand are interdependent. Landowners

elicited testimony that Roswell supports demand for Groom Mine tourism because Roswell, like
Area 51, interests alien enthusiasts. Vol. V, Tr. 18:15-24 (DiFederico); see also Vol. VIII, Tr.
26:23-27:1 (Leavitt closing) (“On that first issue of demand, [Mr. DiFederico] looked, of course,
did 180,000 people go to the UFO museum in Roswell.· That’s evidence that it’s more probable
than not that 180,000 people would come to the Sheahan Family property.”). But the Roswell
festival is free, and the Roswell UFO Museum charges an admission fee of just $5.00 ($2 for

21
22
23
24

9

Landowners did not offer evidence on the admission fee to Red Rock Canyon. The Commission may
take judicial notice of the official park website setting forth admission fees,
https://www.redrockcanyonlv.org/fees/.
Mr. DiFederico testified that “tours” to Bryce Canyon, apparently where transportation is provided,
cost $200. Vol. V, Tr. 34:16-18. But the actual admission fee is $35/vehicle, the maximum charge to
visit any national park. See https://www.nps.gov/aboutus/entrance-fee-prices.htm (listing national parks
where there is an entrance fee and the price of admission).
10

25
26
27
28

11

Landowners did not offer evidence on the admission fee to Death Valley National Park. The
Commission may take notice of the National Park Service website setting forth the $30/vehicle
admission. https://www.nps.gov/aboutus/entrance-fee-prices.htm

24

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1

children). Vol. V, Tr. 161:19-21 (DiFederico); Vol. VI, Tr. 55:10-17 (Moeder).

2

99.

Landowners also suggested in questions to Mr. DiFederico that prior owners of

3

the Roswell crash site charged visitors as much as $250/person for VIP access to the property.

4

Vol. V, Tr. 246:14-18. But the article mentioning a $250 admission fee makes clear that the

5

tours would be offered only for a few days during the annual Roswell festival, from July 5-9,

6

2018. Ex. 556a; Vol. V, Tr. 261:9-14 (DiFederico). Landowners offered no evidence of how

7

many people, if any, paid $250 for the VIP tour during the one time the property was open to the

8

public.

9

100.

Four months later, in November 2018, the Roswell crash site sold as a cattle

10

ranch, not for any tourism use. Pl. Ex. 556 (describing sale of property in November 2018 for

11

“ranching operations”); Vol. V, Tr. 162:3-20 (DiFederico).

12
13

2. Mr. DiFederico Otherwise Did Not Support His $400 Entrance Fee
101.

Mr. DiFederico testified that his $400 entrance fee could be justified based on

14

discussions that he had with 12 tour booking companies as well as the fact that Adventure Photo

15

Tours charges $200 for its “Area 51 Tour.” Vol. V, Tr. 20:11-20, 45:18-25 (DiFederico); see

16

also Vol. I, Tr. 57:5-16 (Leavitt opening) (“[H]e looked at the existing Area 51 tour where

17

people pay 200 bucks to not see Area 51. And he said, well, I know I can get that. He then

18

contacted the booking agencies that book for this Area 51 tour, there are about 12 of them….”);

19

Vol. VIII, Tr. 33:1-5 (Leavitt closing) (“He consulted several booking agencies who gave him a

20

number of $300 to $1,000 per person, and he concluded at $400 per person.”).

21

102.

These two data points do not support a $400 admission price at the Groom Mine.

22

103.

First, Mr. DiFederico’s telephonic conversations with 12 booking agents deserve

23

little weight. Vol. V, Tr. 20:11-20, 45:18-25 (DiFederico). One booking agent apparently told

24

Mr. DiFederico that a tour operator could charge $1,000 for overnight stays. Id., Tr. 149:24-

25

150:1. This hearsay conversation has no relevance because Mr. DiFederico’s analysis does not

26

contemplate overnight stays. Id., Tr. 150:4-6. A second booking agent apparently told Mr.

27

DiFederico that a tour operator could charge $300 to go to Area 51. Id., Tr. 149:18-21. This

28

hearsay conversation lacks probative value because a $300 entrance fee does not support Mr.

25

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1

DiFederico’s $400 entrance fee. Mr. DiFederico did not testify to what the other ten booking

2

agents told him.

3

104.

Landowners did not lay an adequate foundation to give Mr. DiFederico’s

4

testimony about conversations with Area 51 tour operators much weight. Mr. DiFederico did not

5

know the names of the two booking agents. Id., Tr. 148:12-14. He never met them. Id., Tr.

6

148:15-17. He did not show the unnamed persons any photographs of the Groom Mine. Id., Tr.

7

148:18–149:1. Nor did he testify regarding how long the two unnamed individuals had been

8

booking tours and whether they had any knowledge or expertise regarding how much tours

9

should cost.

10

105.

With respect to the unnamed, unknown person who told Mr. DiFederico that a

11

$300 entrance fee was possible, Mr. DiFederico did not testify how the person determined the

12

$300 price, including how many people would pay $300. Only 2,000 people take the current

13

“Area 51 Tour.” Vol. V, Tr. 158:8-11 (DiFederico); Vol. VI, Tr. 56:23-57:25 (Moeder). Most

14

significant of all, Mr. DiFederico did not testify to what he told this unknown, unnamed person.12

15

106.

The Adventure Photo Tours “Area 51 Tour” also does not support Mr.

16

DiFederico’s $400 admission fee. Landowners argued that if people are willing to pay $200 to

17

go to Area 51’s back gate, then they must be willing to pay more to see the distant Air Force

18

buildings. Vol. I, Tr. 57:5-16 (Leavitt Opening) (“[Mr. DiFederico] looked at the existing Area

19

51 tour where people pay 200 bucks to not see Area 51. And he said, well, I know I can get

20

that.”).

21

107.

There are at least three major flaws with this conclusion. First, there is no charge

22

to go the “Area 51 back gate.” Anyone can go for free; Mr. Harris testified that he has gone

23

hundreds of times. Vol. IV, Tr. 175:13-24 (Harris).

24
25

108.

Adventure Photo Tours charges $200 for transportation and entertainment.

People pay to: ride in a luxury SUV for an entire day; get picked up and dropped off at their

26
27
28

12

For example, the record does not indicate whether Mr. DiFederico alerted the booking agent that the
Groom Mine experience would last just one hour and that there would be no capital improvements at the
Groom Mine, not even bathrooms.

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hotel; have an entertaining tour guide; have lunch at the Little A’Le’Inn; view Native American

2

petroglyphs; see a Joshua tree forest; and go to various “Area 51 sites,” including the back gate,

3

the black mailbox, the Alien Research Center, and McCarran International Airport (to see Janet

4

Airlines). Vol. V, Tr. 156:17-158:7 (DiFederico); Vol. IV, Tr. 177:9-178:23 (Harris). The $200

5

that people pay for the tour is not tied to any interest in real estate. Vol. VI, Tr. 106:17-22

6

(Weissenborn).

7

109.

Second, about 2,000 people annually take the Adventure Photo Tours “Area 51

8

Tour.” Vol. V, Tr. 158:8-11 (DiFederico); Vol. VI, Tr. 56:23-57:25 (Moeder). But Mr.

9

DiFederico assumed that 91,250 would visit the Groom Mine annually. That 2,000 people pay

10

$200 to go on an “Area 51 Tour” does not establish 91,250 people would pay $400 to visit the

11

Groom Mine. Vol. VI, Tr. 83:14-20 (Moeder) (“So when you go from what’s empirically

12

defensible, existing in the marketplace … that’s the 2,000. When you go to the next level of

13

91,000 people … there’s no evidence of that. That’s where it’s speculative and that’s where it’s

14

unreliable.”).

15

110.

Third, no facts or data support Mr. DiFederico’s speculation that a Groom Mine

16

tour operator could double the tour price (from $200 to $400) and increase attendance by a

17

multiple of 46 (from 2,000 to 91,250).

18

111.

Landowners put on no evidence about the financial feasibility of a tourism

19

operation having less than 91,250 annual visitors. Vol. V, Tr. 159:16-19 (DiFederico) (“Q. And

20

as part of your appraisal reports, you did not study how expenses should be adjusted if 8,000 or

21

12,000 people are going out to the Groom Mine? A. No, I did not.”). And Mr. DiFederico

22

admitted in deposition that Groom Mine tourism may not be financially feasible if the tour

23

operator only could get 12,000 annual visitors paying $300 each (i.e. where price is 50% higher

24

than the Adventure Photo Tour’s price and attendance is sextupled). Mr. DiFederico testified:

27

Mr. Leavitt asked you the following [in deposition]: Question. “Okay.
As you sit here today, can you offer an opinion of whether … the
operation would be financially feasible if there were only 12,000 people
going to the property at a $300 charge?

28

“Answer. No. Because I’d have to redo all these. But my gut
would tell me it wouldn’t be feasible.”

25
26

Q.

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Did I read that correctly?

1
A.

Yes.

Q.

2

Now, if we could go to page 607 of your deposition, beginning at line 17.
Mr. Leavitt asked you, “Okay. So I’m going to go back. So if there’s a
tour operation which currently exists which does not even allow an
individual to see Area 51 and only approximately 2,000 people a year are
taking that tour and it continues to operate, why would a tour that has
12,000 persons and goes onto the landowners’ property and charges $300
a person instead of $200 a head not be financially feasible?

3
4
5
6

“Answer. Because there’s different expenses getting to the
property.”

7
8

Did I read that correctly?

9
10

A.

Yes.

Vol. V, Tr. 160:15-161:13 (DiFederico).

11

3. Mr. DiFederico Failed To Support That Visitors Would Pay $50 Per Person

12

On Knickknacks

13

112.

Mr. DiFederico also did not support his assertion that Groom Mine visitors would

14

spend $50 on magnets, key chains, t-shirts, and other knickknacks. To justify this additional

15

$4.5 million revenue stream,13 Mr. DiFederico claimed that his family spends a lot on churros

16

and sundries when they go to Disneyland. Vol. V, Tr. 46:7-14 (DiFederico) (“[W]hen I travel, I

17

joke that I have a Churros Card for Disneyland…because my kids want to get churros all day.

18

So you’re spending money on knickknacks, T-shirt, key chain, a magnet, something….”). Mr.

19

DiFederico’s personal spending habits over the course of an entire day at Disneyland are an

20

anecdote, not market evidence of what people would spend in one hour at the Groom Mine.

21

113.

On cross-examination, Mr. DiFederico testified that George Harris, the owner of

22

the Alien Research Center, also supported his assumed $50 per person expenditures for

23

knickknacks. Id., Tr. 144:7-13. Mr. Harris testified otherwise. According to Mr. Harris, the

24

Alien Research Center had 2,192 sales in 2015, and the average sale was $26.75—for total

25

annual revenue of $58,636 (2,192 x $26.75=$58,636). Vol. IV, Tr. 168:20-24 (Harris).14

26
27

13

28

14

91,250 x $50 = $4,562,500.

Landowners did not offer evidence regarding the percentage of visitors to the Alien Research Center
who spend nothing. The average expenditure presumably would be materially less than $26.75 if these

28

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114.

In addition, Mr. DiFederico’s proposed large-scale tourism use must be rejected

2

as speculative because Landowners failed to put forward credible market evidence of sustainable

3

demand. As Mr. Moeder explained, establishing sustainable demand is critical: “If the demand

4

is not there permanently or [is not] sustainable and it falls off, the value of that investment

5

plummets. So a developer and investor wants to know that it is sustainable, number one.” Vol.

6

VI, Tr. 55:3-6 (Moeder).

7

115.

Landowners failed to carry their burden of proving that demand for large-scale

8

tourism at the Groom Mine could be sustained year after year. For this additional reason, their

9

proposed highest and best use of large-scale commercial tourism is speculative and not

10
11

reasonably probable in the reasonably near future.
116.

The Property’s A-5 zoning district does not exclude all commercial uses. In fact,

12

as Mr. Lytle explained, the agricultural district conditionally permits a “broad range” of

13

commercial uses beyond the legal uses by right. Vol. IV, Tr. 16:1-17:14 (Lytle). Examples of

14

approvable uses include: bed and breakfast inns, golf courses, mining and milling operations,

15

recreational camps and resorts, and recreational vehicle parks and campgrounds. Pl. Ex. 295(a)

16

at § 13-5L-3. Each of these uses, however, requires a special use permit. Id.

17

117.

The Lincoln County Master Plan further supports the fact that large-scale

18

commercial tourism at the Groom Mine would require, at a minimum, a special use permit.

19

Landowners introduced the following matrix from the Master Plan:

20
21
22
23
24
25
26
27
28
$0 expenditures also were included in the overall count.

29

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Def. Ex. 37 at CLARION WF 003754. As Mr. Lytle, Director of Planning for Lincoln County,

2

explained, the County uses this chart to “vet proposed actions or potential uses in the county.”

3

Vol. IV, Tr. 12:11-16 (Lytle). Using the matrix, the intersection of the agricultural and

4

commercial zoning results in an “M,” which means a commercial use may be approved in the A-

5

5 zoning district, but with conditions. Id., Tr. 13:20-22. In other words, the Master Plan further

6

establishes that commercial uses are inconsistent with an agricultural zoning designation absent a

7

special use permit. So, while it is true that one goal of the master plan is to increase tourism15

8

(Vol. IV, Tr. 11:4-25 (Lytle)), it is also true that the master plan does not allow unrestricted

9

large-scale commercial uses in agricultural zoning districts. If it did, there would be a “Y” not

10

an “M” in the above matrix.

11

118.

Additionally, the actions of Mr. DiFederico and Landowners themselves confirm

12

that any reasonable buyer would expect approval from Lincoln County before putting the Groom

13

Mine to a tourist commercial use. According to Mr. DiFederico, “special use permits are for

14

things that are not specifically identified as an allowable use.” Vol. V, Tr. 175:19-20 (emphasis

15

added). Mr. DiFederico therefore assumed that a special use permit was required for his

16

proposed tourism use. Id., Tr. 176:12-22 (“Q. And in your analysis, you did not treat the Groom

17

Mine property as zoned for tourist commercial use at the date of value; correct? A. I -- I

18

assumed that it would get the use permit and it would be able to operate…. I just thought you

19

would probably get [a special use permit] because it would clear up things. When you come in

20

with something that’s not directly identified as a use, you typically would apply for a special use

21

permit.”).

22
23

119.

Landowners spent thousands of dollars to obtain a post-taking advisory opinion

on the possibility of a special use permit and zone change. Vol. III, Tr. 198:23-199:25

24
25
26
27
28

Mr. Lytle described increasing tourism as “one small facet of improved economic stability and
sustainability in the county.” Vol. IV, Tr. 11:9-15 (Lytle). Mr. Lytle further explained that the economic
fiber of Lincoln County includes the Air Force, which is not only a major employer, but which pays a
significant sum per year to the County in lieu of taxes. Id., Tr. 62:9-63:2; 66:6-12. And since
unemployment remains high in the area (Def. Ex. 37 at CLARION WF 003740), the goal of increasing
tourism cannot be viewed in isolation when other important goals of maintaining existing jobs and
revenue streams also exist.
15

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(Sheahan). This suggests that Landowners came to the same conclusion as Mr. DiFederico and

2

Mr. Neville: commercial tourism of any kind likely required a rezoning or a special use permit.

3

Vol. VI, Tr. 192:12-14 (Neville) (“Q. Is commercial tourism a permitted use under the

4

agricultural zoning designation? A. No, it isn’t.”); Id., Tr. 199:23-200:8.

5

120.

Landowners argued that their post-taking efforts merely involved finding out what

6

the “highest” use Lincoln County would have allowed on the Date of Value, not whether the

7

County would have approved Mr. DiFederico’s highest and best use. Vol. III, Tr. 108:16-25;

8

199:16-22 (Sheahan); Vol. IV, Tr. 39:21-40:22 (Lytle); Vol. IV, Tr. 255:24-258:3 (DiFederico).

9

However, a close look at Landowners’ applications and public representations prior to trial belie

10

this claim. First, absent from the May 2016 special use request is any statement to the effect that

11

Landowners had the legal right to bring 250 tourists per day to the property and were only

12

seeking guidance about the “highest” use the County theoretically would have approved. Def.

13

Ex. 38. Rather, the application states that Landowners wanted a special use permit, in part, so

14

that the existing mine could be “used as a live museum to educate visitors on the history of the

15

Groom Lake Valley area and the rich family history at the Groom mine site.” Id. at TDG WF

16

000853.

17

121.

Further, in explaining their proposal to the Lincoln County Commissioners,

18

Landowners represented that the purpose of submitting the applications was to “essentially allow

19

a - - a recreational use with a tourist commercial component . . . .” Pl. Ex. 293 at 7:22-9:22.

20

“Individuals would be invited under this special use permit and zone change to come onto the

21

property and enjoy a tour of the oldest owned family [sic] mine in the entire state of Nevada . . .”

22

Id. Landowners made clear at that time that visitors on the tour “would have an opportunity to

23

look across the valley, across Groom Lake Valley and see Area 51.” Id. at 10:1-4. These

24

statements are at odds with Landowners’ newfound claim that a special use permit was only

25

necessary if Landowners constructed new improvements. Vol. VIII, Tr. 22:5-23:1 (Leavitt

26

closing).

27
28

122.

Regardless, there is no evidence that a buyer would simply assume that large-

scale tourism was legally permissible on the Date of Value. As Mr. Moeder explained, before

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developers or investors will pay a significant sum for a tourist commercial property, they require

2

written assurances that the property can be put to that intended use. Vol. VI, Tr. 66:8-18

3

(Moeder). Here, Lincoln County never made such a guarantee. Therefore, a buyer looking to

4

purchase the Groom Mine for large-scale tourism on the Date of Value would be left with

5

allowable uses in the A-5 zoning district and would understand that, at a minimum, the buyer

6

would need to apply for a special use permit. See Vol. V, Tr. 175:16-24 (DiFederico) (noting

7

that special use permits are for uses “not specifically identified as an allowable use”).

8
9

123.

A reasonable buyer also would be aware that if the buyer changed the existing use

of the Groom Mine from rural recreation to commercial tourism, the Air Force, as the

10

neighboring property owner, could file an objection with the planning commission to prevent

11

that use—even if the zoning permitted a tourism use as of right. Vol. IV, Tr. 68:8-12 (Lytle).

12

124.

For all of these reasons, no reasonably knowledgeable buyer would assume large-

13

scale tourism was legally permissible at the Groom Mine on the Date of Value without

14

permission from Lincoln County.

15

4. Landowners Failed To Establish That Lincoln County Would Have Issued

16

The Special Use Permit Or Zone Change Necessary For Large-Scale

17

Commercial Tourism And Commercial Retail

18

125.

Although Lincoln County’s Master Plan has the goal of encouraging tourism, the

19

Commission finds it would have considered and weighed the Air Force’s objections to

20

permitting large scale commercial tourism use of the Property. Mr. Lytle testified that, in his

21

opinion, “not a large population of people” would ever come to the Groom Mine as part of any

22

tourism business. Vol. IV, Tr. 59:3-5. Lincoln County would not have put at risk Air Force jobs

23

and the Air Force’s annual payment to the County if “not a large population of people” ever were

24

expected to travel to the Groom Mine. Id., Tr. 62:9-63:2, 66:6-12.

25

126.

As Mr. Mathews explained, while zoning may be “somewhat flexible” in Lincoln

26

County, “[it] really becomes an issue when there’s conflict between neighbors, and that’s when

27

zoning really becomes an issue.” Vol. VII, Tr. 108:2-10 (Mathews). Mr. Neville further

28

testified that although he concluded it was reasonably probable the Groom Mine could be

32

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rezoned for commercial tourism on the Date of Value, that permission would be “subject to

2

conditions, and there are a lot of unknown conditions due to the way the special use permit was

3

processed. So that’s a very important part of that statement.” Vol. VII, Tr. 11:7-21 (Neville);

4

Vol. VI, Tr. 212:16-20 (Neville) (“[A]ny buyer of that property who was going to use it for a

5

tourist commercial [use] … would want to know exactly what those conditions were going to be

6

and just exactly how the Air Force would react to their proposal.”).

7

127.

Indeed, Mr. Lytle testified that he “[c]ertainly” would consider any Air Force

8

objections and that those objections could be addressed through conditions such as a limitation

9

on the number of days or hours a tourism business could operate at the Groom Mine. Vol. IV,

10

Tr. 61:20-62:8 (Lytle).
Mr.DiFrederico’s Sales Are not Comparable to the Groom Mine.

11
12
13
14

The Commission has been instructed that “to be truly comparable, a sale should have the
same or similar highest and best use as the Subject Property.” Commission Instruction No 14.
128.

Landowners otherwise did not carry their burden of proving the fair market value

15

of the Groom Mine, and their valuation must be rejected for this separate reason as well. As set

16

forth below, Mr. DiFederico misapplied the sales comparison approach by selecting sales from a

17

drastically different market, by adjusting those sales inconsistently, and by failing to support

18

those adjustments with any market evidence. Mr. DiFederico’s opinion of value is therefore

19

unreliable and cannot serve as a basis for awarding just compensation.

20

129.

Rather than look for sales with the same highest and best use in a similar market

21

area, Mr. DiFederico relied on sales in the Las Vegas metropolitan area. Vol. V, Tr. 68:7-20

22

(DiFederico) (testifying that he considered approximately 75 sales, most of which were on the

23

Las Vegas Strip); see also Pl. Ex. 482 (Weissenborn map showing location of DiFederico sales

24

relative to the Groom Mine). Las Vegas and rural Lincoln County do not share comparable

25

populations, Vol. VI, Tr. 108:1-6 (Weissenborn); similar supply and demand characteristics, Vol.

26

IV, Tr. 214:22–215:7 (DiFederico) (“[Lincoln County is] just not an active place. It’s very slow,

27

very quiet.”); comparable municipal infrastructure, Vol. V, 93:8-12 (DiFederico); or market

28

competitiveness. Vol VI, Tr. 108:18-24 (Weissenborn). As Mr. DiFederico himself testified at

33

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trial: “I don’t think anybody competes with Las Vegas, hotels, entertainment, shopping. There’s

2

more in a five-mile stretch on the Strip than, I think, more top-notch restaurants than anywhere in

3

the country in that five-mile stretch.” Vol. IV, Tr. 216:4-8 (DiFederico) (emphasis added).

4

Accordingly, real estate prices are higher in Las Vegas than anywhere else in Nevada. Vol. VI,

5

Tr. 111:22-25 (Weissenborn) (citing Mr. DiFederico’s appraisal report); see also Vol. V, Tr.

6

171:14-16 (DiFederico) (“$50 million is a big number. . . but in Las Vegas, we have large sales,

7

large sale prices, for properties.”). None of Mr. DiFederico’s comparable sales are in the same

8

or similar market as the Groom Mine in rural Lincoln County. See Vol. VI, Tr. 107:24-108:24

9

(Weissenborn).

10

130.

Mr. DiFederico was unable to explain how any of the sales he used in his

11

comparable sales analysis were a substitute for the Groom Mine other than being tourist

12

commercial properties. Mr. DiFederico admitted that none of his sales “were truly the best

13

comparable.” Vol. V, Tr. 69:7 (DiFederico).

14

131.

Despite Landowners’ claims that the Groom Mine is a unique, one-of-a kind

15

property, Mr. DiFederico used Las Vegas sales that are not themselves unique or one-of-a-kind.

16

See Vol. V, Tr. 185:19-22 (DiFederico) (“And that one, to me, is funny because [Sale 1] has

17

been vacant for 15 years. So if it’s such a unique development opportunity, why – nobody has

18

put a stick out there.”); Id., Tr. 90:12-14 (“I mean, I’ve done a lot of work over there [where Sale

19

2 is located].”); Id., Tr. 97:6-14 (“I mean, I’ve used [Sale 3] multiple times. . . .”); Id., Tr. 98:5-

20

12 (“[Sale 3 is] not unique . . . .”); Id., Tr. 105:12-25 (testifying that he appraised the property

21

across the street from Sale 4); Id., Tr. 111:19-22 (testifying that Sale 5 “was from [his]

22

database”).

23

132.

Nor do any of Mr. DiFederico’s sales have value based on a view. Id., Tr.

24

202:11-13 (“Q. And none of your comparable properties was purchased with the intent of selling

25

the view from those properties; right? A. Thinking of my properties, no.”); see also Vol. VI, Tr.

26

93:10-16 (Moeder) (“You’re talking about paying $400 to see something versus comps that are

27

hotels or other land uses or racetracks. That is a completely different market…. It’s not

28

comparable.”).

34

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2

133.

fair market value of the Groom Mine.

3
4

Individually, and collectively, Mr. DiFederico’s Las Vegas sales fail to inform the

DiFederico Sale 1
134.

Mr. DiFederico’s Sale 1 on Tropicana Avenue is not probative of the fair market

5

value of the Groom Mine because the properties are not remotely comparable. Vol. VI, Tr.

6

111:4-13 (Weissenborn). Mr. DiFederico’s Sale 1 is located just east of the Las Vegas Strip and

7

adjacent to McCarran Airport. Vol. V, Tr. 73:23-74:3 (DiFederico); Pl. Ex. 474 (aerial view). It

8

is behind the MGM Grand Hotel, the largest hotel in the United States, in the resort corridor of

9

the Las Vegas Strip. Vol. V, Tr. 187:2-5 (DiFederico); Pl. Ex. 470 (marketing material). The

10

MGM has enough rooms to accommodate every single resident of Lincoln County. Vol. V, Tr.

11

187:6-10 (DiFederico). Mr. DiFederico’s Sale 1 was even considered as a possible site for the

12

new NFL stadium. Vol. V, Tr. 188:11-13 (DiFederico). The University of Nevada Las Vegas

13

ultimately purchased Mr. DiFederico’s Sale 1 for $50 million, Vol. V, Tr. 74:8-9 (DiFederico),

14

the same value that Mr. DiFederico ascribes to the Groom Mine.

15

135.

Commercial properties with the greatest exposure tend to sell for higher unit

16

prices. Vol. V, Tr. 210:21-211:2 (DiFederico); see also Vol. VI, Tr. 110:17-111:3

17

(Weissenborn) (“Well, for a commercial property, traffic count is desirable. It provides a

18

marketing window for a business. And if you have 100,000 people per day traveling past a

19

commercial property, that’s that much less marketing money you have to spend on a property.”).

20

Mr. DiFederico’s Sale 1 fronts Tropicana Avenue, one of Las Vegas’s “major thoroughfares”

21

with close to 100,000 vehicles per day. Vol. V, Tr. 85:12-17, 186:22-23 (DiFederico). By

22

comparison, no vehicles drive within miles of the Groom Mine. See Vol. VI, Tr. 171:12-24

23

(Neville) (Groom Mine is 11 miles beyond the NTTR security checkpoint).

24

136.

No buyer would view Mr. DiFederico’s Sale 1 as comparable to the Groom Mine

25

because of these locational differences. Vol. VI, Tr. 111:4-13 (Weissenborn) (“Q. Would a

26

potential buyer view sale 1 as comparable to the Groom Mine? A. Sale 1 is located on Tropicana

27

Boulevard. It is an eight-lane highway a half a mile from the Las Vegas Strip just north of

28

McCarran Airport. . . . And Mr. DiFederico is comparing that property to an inholding . . . within

35

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the Air Force field 29 miles from a major highway. They are not remotely comparable in

2

location.”) (emphasis added). Nor would a buyer with $50 million to spend view the Groom

3

Mine as a substitute for Mr. DiFederico’s Sale 1. Vol. VI, Tr. 112:1-5 (Weissenborn). Even Mr.

4

DiFederico himself testified that his Sale 1 is “substantially better” than the Groom Mine. Vol.

5

V, Tr. 85:2-11 (DiFederico); Id., Tr. 81:25-82:4 (“Well, first, I think it was obvious it was a

6

better location.”).

7
8
9

DiFederico Sale 2
137.

Mr. DiFederico’s Sale 2 is also not comparable to the Groom Mine. Vol. VI, Tr.

113:23-114:1 (Weissenborn). Like his Sale 1, Mr. DiFederico’s Sale 2 has a superior location in

10

the Las Vegas metropolitan area. Id. His Sale 2 has frontage on Boulder Highway with access

11

to I-515 within a half mile. Vol. V, Tr. 189:20-190:1 (DiFederico). The property is within a

12

gaming overlay that has hotel casinos. Id., Tr. 90:25-91:9.

13

138.

Sale 2 was developed into a school and apartments. Vol. V, Tr. 87:1-9

14

(DiFederico); Pl. Ex. 464 (photos). Prior to the sale, the buyer of Sale 2 intended construction of

15

600 apartment units. Vol. V, Tr. 189:10-12 (DiFederico). It thus does not share the same

16

highest and best use as Mr. DiFederico’s proposed highest and best use of the Groom Mine, and

17

he admitted as much at trial. Id., Tr. 95:14-25 (“Because if - - if this was a hot area, then this

18

location had a gaming overlay . . . . So it had that potential, but because of that location on

19

Boulder Highway, it doesn’t have that demand. . . .”). A potential buyer would not develop a

20

600-unit apartment complex on the Groom Mine. Vol VI, Tr. 113:8-14 (Weissenborn). No

21

buyer would view the Groom Mine as a substitute for Mr. DiFederico’s Sale 2. Id., Tr. 114:6-8.

22

139.

Mr. DiFederico testified that smaller properties tend to sell for higher per acre

23

values. Vol. V, Tr. 92:13-18. His Sale 2 is a quarter the size of the Groom Mine, Id., and it sold

24

for $4,195,000. Id., Tr. 88:12-14. On its face, Mr. DiFederico’s Sale 2 does not support a $50

25

million valuation of the Groom Mine. In response to this critique, Mr. DiFederico testified that

26

that was “ridiculous” because “[y]ou’re comparing apples and oranges. . . . They’re not the same

27

size. There’s [sic] so many differences. . . .” Vol. V, Tr. 89:9-22. Mr. DiFederico is right—

28

there are so many differences between his Sale 2 and the Groom Mine that the price paid for

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Sale 2 is not indicative of the fair market value of the Groom Mine.

2
3

DiFederico Sale 3
140.

As with his other sales, Mr. DiFederico’s Sale 3 is not comparable to the Groom

4

Mine because of its location in the Las Vegas Metro, a 15-minute drive to the Strip. See Vol. VI,

5

Tr. 114:21-115:1 (Weissenborn); Vol. V, Tr. 192:16-19 (DiFederico). Mr. DiFederico’s Sale 3

6

has excellent visibility from I-15, the “lifeblood” of Las Vegas. Vol. V, Tr. 192:2-11

7

(DiFederico). I-15 is the “primary artery connecting Los Angeles and Las Vegas,” and this

8

traffic passes by Mr. DiFederico’s Sale 3. Vol. VI, Tr. 114:21-24 (Weissenborn); Vol. V, Tr.

9

192:2-11 (DiFederico). A buyer would not view the Groom Mine as a substitute for Mr.

10

DiFederico’s Sale 3 because of “the location that is influenced by Las Vegas, the municipal

11

utilities that are available, the freeway interchange, and the visibility to about 50,000 vehicles per

12

day.” Vol. VI, Tr. 115:15-22 (Weissenborn). DiFederico’s Sale 3 was developed into Speed

13

Vegas, where visitors can pay several hundred dollars to drive a Lamborghini or Ferrari around a

14

racetrack. Vol. V, Tr. 191:11-15 (DiFederico). The property was zoned H-2 at its sale date; the

15

H-2 zoning permits a variety of residential, office, and commercial uses. Id., Tr. 193:1-5.

16
17

141.

to support Mr. DiFederico’s $50 million valuation.

18
19

Mr. DiFederico’s Sale 3 is not comparable to the Groom Mine and cannot be used

DiFederico Sale 4
142.

Similarly, Mr. DiFederico’s Sale 4 is not comparable to the Groom Mine because

20

of location. Vol. VI, Tr. 116:23-117:4 (Weissenborn) (“Again, Sale 4 is located in metropolitan

21

Las Vegas with all municipal infrastructure and it’s ready for development.”). His Sale 4 is

22

located in the rapidly growing Galleria area, just west of Boulder Highway and less than a half

23

mile to the on/off ramps to US 95/I-515. Vol. V, Tr. 101:18-22, 193:24-194:4 (DiFederico);

24

Vol. VI, Tr. 116:13-22 (Weissenborn). Near the Galleria at Sunset Mall, the area around Mr.

25

DiFederico’s Sale 4 has numerous retail stores and restaurants, with probably “the most retail in

26

the whole city of Las Vegas.” Vol. V, Tr. 194:8-11 (DiFederico). There is also a hospital

27

nearby and a subdivision development to the south. Vol. VI, Tr. 116:16-20 (Weissenborn). Mr.

28

DiFederico’s Sale 4 was developed into Cowabunga Water Park. Vol. V, Tr. 102:1-5

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(DiFederico); Pl. Ex. 466 (photos).

2

143.

At 22.68 acres, his Sale 4 is roughly a quarter the size of the Groom Mine

3

patented acres, Vol. V, Tr. 193:9-17 (DiFederico), and it sold for approximately $4.6 million.

4

Id., Tr. 193:18-19. Mr. DiFederico’s Sale 4 does not support his opinion of value of the Groom

5

Mine.

6
7

DiFederico Sale 5
144.

Finally, Mr. DiFederico’s Sale 5 is not comparable to the Groom Mine, and no

8

buyer would view it as a substitute. Vol. VI, Tr. 118:17-119:3 (Weissenborn) (“Again, its

9

location. It is just west of the Petro Truck Stop. There’s some other retail users there. There’s a

10

large restaurant. And what doesn’t really show in this photograph, but the area has since been

11

developed with a number of large distribution facilities, large industrial buildings, in addition to

12

the [Las Vegas Speedway].”); Pl. Ex. 467 (photos). It is located near the Las Vegas Motor

13

Speedway, which hosts NASCAR races and seats more than 100,000 people. Vol. V, Tr.

14

109:24-110:9 (DiFederico). It sold for approximately $7.5 million in July 2007, at the “top of

15

the market.” Vol. V, Tr. 110:14-18, 111:10-11 (DiFederico). The buyer owned adjacent land

16

and intended to construct a casino on the site. Id., Tr. 197:1-3.

17

145.

Because of the significant market differences between rural Lincoln County and

18

metropolitan Las Vegas, not one of Mr. DiFederico’s sales would be viewed as a substitute for

19

the Groom Mine by a potential buyer. Vol. VI, Tr. 119:17-20 (Weissenborn). Since none of Mr.

20

DiFederico’s sales are comparable, no number or magnitude of adjustments will provide a

21

reliable indication of the market value of the Groom Mine. Vol. VI, Tr. 111:14-21

22

(Weissenborn) (“I don’t think whatever adjustment you apply to [Sale 1], it doesn’t result in a

23

reliable indication of value.”); see also Vol. VI, Tr. 114:2-5, 116:23-117:4 (Weissenborn).

24

146.

Landowners’ failure to establish that large-scale tourism was the highest and best

25

use of the Groom Mine, as well as Mr. DiFederico’s failure to support his valuation with

26

comparable sales and supported adjustments, mean that the Groom Mine must be valued based

27

on its actual, existing use at the Date of Value: as a rural recreational retreat. See Commission

28

Instruction No. 13 (“The highest and best use is not necessarily what the owner was using the

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property for at the time of the taking. However, in absence of proof to the contrary, the current

2

use is presumed to be the best use.”). The United States’ expert appraiser, Warren Neville, so

3

valued the Groom Mine.

4

B.

5

Mr. Neville Concluded That The Groom Mine Had A Value Of $254,000 At
The Date Of Taking As A Rural Recreational Retreat

6

147.

Mr. Neville identified five comparable rural recreation properties in Lincoln and

7

White Pine counties. These sales all were arms-length transactions. Id., Tr. 216:17-21, 218:18-

8

19. They ranged from 25 to 195 acres in size, comparable to the Groom Mine’s 87.49 patented

9

acres. Pl. Exs. 325, 326 (summarizing sales).

10

148.

Market participants buy and sell rural recreational properties on a price per acre

11

basis. Vol. VI, Tr. 216:4-13 (Neville). Mr. Neville’s five comparable sales ranged from $1,668

12

to $10,000/acre, as shown in Plaintiff Exhibit 324, imaged below:

13
14
15
16
17
18
149.

19

Mr. Neville concluded that the Groom Mine should sell for less than the Sale 1

20

(S-1), Sale 2 (S-2), and Sale 4 (S-4) properties. He concluded these properties had superior

21

attributes to the Groom Mine when they sold including: superior improvements (Sales 1 and 4)16;

22

pinyon pines and junipers (Sales 1 and 4); less acreage (Sales 1 and 2)17; better location (Sale 2);

23
Sale 1 had a “very good quality” modular home, solar electric system, 3-car garage, and fencing.
Vol. VI, Tr. 220:20-221:3 and 221:16-21 (Neville). Sale 4 had a remodeled home and superior solar
electric system. Id., Tr. 229:7-230:24.
16

24
25
26
27
28

17

The appraisers on both sides agree that smaller-acreage properties will fetch a higher unit price than
comparable larger properties. Vol. VI, Tr. 222:7-9 (Neville) (“So, typically, smaller properties tend to
sell for a higher unit value. So I considered that to be a superior feature.”); Vol. V, Tr. 82:5-12
(DiFederico) (explaining why smaller properties sell at a higher unit value) (“So our parcel is twice as
large as this. This one is smaller. It has more buyers that can afford it, more competition, pushes the
price up. So that one you adjust down for size because it’s smaller.”).

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proximity to public recreation and hunting land (Sales 1 and 4); and superior water rights (Sale

2

4). Vol. VI, Tr. 219:5-222:15 (Sale 1), 222:16-224:21 (Sale 2), 227:17-230:24 (Sale 4). Mr.

3

Neville separately determined that the Groom Mine should sell for more than the Sale 3 (S-3)

4

and Sale 5 (S-5) properties. Id., Tr. 235:14-20.

5
6

150.

Mr. Neville opined that the Groom Mine would sell for between $2,303/acre and

$2,953/acre. Id., Tr. 235:5-20. His final value conclusion was $2,900/acre. Id., Tr. 235:21-23.

7

151.

Mr. Neville applied his $2,900 price/acre to the patented 87.49 acres only. He did

8

not multiply this price by the acreage of the Groom Mine’s unpatented claims because the

9

unpatented claims could be used for mining-related purposes only; they therefore did not

10

contribute to the overall value of the property as a recreational retreat.18 Vol. VI, Tr. 166:23-

11

167:13 (Neville).19

12

152.

13

This resulted in a total market value of the Groom Mine, excluding the mineral

interest, of $254,000 at the Date of Value ($2,900/acre multiplied by 87.49 patented acres).

14

C.

Landowners Did Not Present Other Rural Recreation Sales Or Challenge
Mr. Neville’s Sales-Comparison Analysis

15
16

153.

Landowners disputed Mr. Neville’s highest and best use conclusion but otherwise

17

did not seriously challenge his valuation.20 For example, Landowners did not present any

18

alternative sales of properties having a highest and best use of rural recreation.

19
20

154.

Landowners retained Keith Harper to review Mr. Neville’s appraisal. Mr. Harper

testified that Mr. Neville was qualified to review desert land like the Groom Mine and that Mr.

21
22

18

Mr. Neville did not testify to the value of the mineral estate because the value of the mineral estate is
outside the scope of this proceeding. Commission Instruction No. 20.

23
19

24
25
26
27
28

Mr. DiFederico similarly multiplied his per-acre price by the patented 87.49 acres only. Vol. V, Tr.
122:24-123:3 (DiFederico). Mr. DiFederico also testified that he searched for properties similar in size to
the patented claims (87.49 acres), not properties similar in size to the Groom Mine’s total acreage
including the unpatented claims (371.79 acres). Id., Tr. 182:6-18 (explaining search for properties
between 10-150 acres).
On cross-examination, counsel suggested that two of Mr. Neville’s comparable properties may have
sold under duress. Vol. VII, Tr. 49:5-51:6. Mr. Neville explained that he personally verified the
circumstances of each sale and confirmed that the sales were market, arm’s length transactions. Id., Tr.
60:21-61:16.
20

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Neville’s appraisal satisfied professional standards (except with respect to the determination of

2

highest and best use). Vol. VII, Tr. 146:5-8; 142:4-10 (Harper) (“Q. [Commissioner Pro]: Just

3

assuming – assuming he was correct, that it was … rural recreational residential, was the

4

approach to the comparable analysis taken by Mr. Neville within the normal standards of

5

certified appraisers? A. Yes. I believe that his analysis meets the standards of USPAP and the

6

Yellow Book outside of the highest and best use.”).

7

155.

Mr. Harper offered no criticism of Mr. Neville’s selection of rural-recreation sales

8

or of Mr. Neville’s sales-comparison analysis generally. In response to questioning from

9

Commissioner Pro, Mr. Harper testified only that he did not agree with “some” of Mr. Neville’s

10
11

rankings of his sales. Id., Tr. 142:22-143:9.
156.

But Mr. Harper did not state which sales he would have ranked differently or how

12

a different ranking would have impacted value. Mr. Harper also admitted that he did not visit all

13

of Mr. Neville’s comparable sales. Id., Tr. 148:8-12.

14

157.

The Commission has been instructed that “in situations where there are few

15

instances of comparable sales in recent time, the expert is only expected to make a reasonable

16

estimate of the market value of the subject property after examining all relevant facts.

17

Commission Instruction No 14.

18

D.

Just Compensation

19

158.

The Commission finds Mr. Neville correctly concluded that the Property’s highest

20

and best use on the date of value was rural recreational. The Commission also finds that Mr.

21

Neville’s appraisal complied with applicable industry standards, and that he is qualified to render

22

an expert opinion on the fair market value of the Property. However, the Commission finds that

23

Mr. Neville failed to give sufficient consideration to the unique one-of-a-kind nature of the

24

Groom Mine.

25

159.

The Commission concludes just compensation for the taking is $12,500 per acre

26

or $1.100,000 (87.49 x $12,500 = $1,093,625, rounded to $1,100,000) for the following reasons:

27

In enacting Public Law 98-485 (“1984 Withdrawal”) Congress authorized the withdrawal

28

of 89,600 acres of federal land in Lincoln County, Nevada from public use for military purposes.

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Stipulated Fact No 8. The withdrawal was explicitly made “[s]ubject to valid existing rights,”

2

including the patented and unpatented claims comprising Groom Mine. Id. The legislative

3

history confirms the Groom Mine was not within the scope of the 1984 Withdrawal. Id.

4

160.

Prior to the 1984 Withdrawal, the Federal land surrounding the Property was open

5

to the public. Stipulated Fact No 9. After the 1984 Withdrawal, the Property was a private

6

inholding until the taking in 2015. Id.

7

161.

After the taking, the government restricted public access, but the Landowners had

8

access rights which the Air Force agreed allowed Landowners, their employees and business

9

visitors to access the Groom Mine. Stipulated Fact No. 12. In 1984, the Air Force gave written

10

assurances to Landowners and Congressman Harry Reid and Congresswoman Barbara

11

Vucanovich that “[t]he Sheahan’s will continue to have access to Groom Mine. Their legal

12

rights to own, operate and sell the mine are not affected by the proposed land withdrawal” and

13

that the Air Force “would have no authority to deny access to any employees or business visitors

14

of the Sheahans.” The Air Force also provided written assurances that it “would have no

15

authority to deny access to any employees or business visitors of the Sheahans”, and “could only

16

terminate the Sheahans’ rights to Groom Mine by initiating condemnation proceedings or

17

purchasing the property. At this time the Air Force has no intention of taking such action.”

18

162.

For valuation purposes in this case the parties stipulated that a buyer of the

19

property could be granted permission to enter NTTR to access the Property for themselves, their

20

employees and business visitors, and that the Air Force would not prohibit constrain or interfere

21

with access to the Property beyond those basic restrictions applicable to anyone seeking entry to

22

NTTR. Stipulated Fact No. 12.

23

163.

Terry Ochal was the NTTR Liaison Officer responsible for facilitating the

24

Landowners access to Groom Mine, and was disclosed as the individual with knowledge of

25

Landowners and their guests access. Col. Zuhlke testified at trial that Mr. Ochal was the

26

individual who would have the most knowledge about access to Groom Mine on the date of

27

value. Mr. Ochal testified he had worked with the Sheahans from 2007 to 2015; his job was to

28

facilitate smooth access; the Sheahans had the right of access to their property for themselves,

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their employees and business visitors; as a courtesy the Landowners provided the Air Force with

2

a list of visiting individuals and advanced notice of visits, but the Air Force was not permitted to

3

deny access to the Landowners, their family, their employees or business visitors. Mr. Ochal

4

testified this courtesy was voluntary.

5

164.

As a result of the 1984 Withdrawal, which restricted public access but was subject

6

to all Landowners existing legal rights to the Property, including access to the Groom Mine,

7

Landowners owned the only privately held property with a clear and unobstructed view of Area

8

51.

9
10

165.

The Landowners legal rights to their fee simple interest in the 87.49 acres

comprising the patented claims were fully intact on the date of taking.

11

166.

The Property is unique and one-of-a-kind because of its view of Area 51 and its

12

historic use as a family owned mining operation. The Commission finds the uniqueness of the

13

Property establishes it would command a premium in the real estate market above Mr. Neville’

14

Sale No. 1 of $10,000 per acre. Just compensation for the taking is $1,100,000 (87.49 x $12,500

15

= $1,093,625, rounded to $1,100,000).

16

IV.

17

CONCLUSION
For the reasons explained in this report, it is the Commission’s deliberate judgment that

18

just compensation for the taking is $1,100,000.

19

Dated this 29th day of May, 2020

20
21
22

LAND COMMISSION
/s/_______________________________________
Hon. Michael L. Douglas (Ret.), Commissioner

23
24

/s/_______________________________________
Hon. Peggy A. Leen (Ret.), Chair

25
26

/s/_______________________________________
Hon. Philip M. Pro, Commissioner

27
28

43