UNITED STATES OF AMERICA V. JOHN C. CARPENTER, ET AL.

Filing 510

ORDER granting Elko County's request for an evidentiary hearing on the issue of whether Elko County can establish a right-of-way under Revised Statute 2477. A joint pre-hearing statement is due on 9/29/2014. The parties must raise any issues that must be resolved by the time of the evidentiary hearing in a motion filed on the same date. Signed by Judge Miranda M. Du on 8/18/2014. (Copies have been distributed pursuant to the NEF - KR)

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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,

ORDER

v.

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Case No. 3:99-cv-00547-MMD-WGC

RE EVIDENTIARY HEARING
JOHN C. CARPENTER, et al.,
Defendants,

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and

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COUNTY OF ELKO,

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Defendant/Counter-Claimant,
THE WILDERNESS SOCIETY, et al.,
Defendants/Intervenors/Cross-Claimants.

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After hearing from the parties, the Court granted Elko County’s request for an

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evidentiary hearing on the issue of whether Elko County can establish a right-of-way

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under Revised Statute 2477. The Court finds that such a hearing is appropriate as part

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of the Court’s review of the proposed consent decree, particularly in light of the

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heightened clear and convincing burden of proof required of Elko County.1 The Court

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agrees with TWS that an evidentiary hearing on its cross-claims is not appropriate

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because review of TWS’s cross-claims under the Administrative Procedure Act, 5

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U.S.C. § 702, is limited to the administrative records.

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The Court agrees with the United States and TWS that Elko County must
establish its claimed right-of-way under Revised Statute 2477 by clear and convincing
evidence. (Dkt. no. 507.)

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The Court has ordered the parties to confer and file a joint pre-hearing statement.

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The parties are directed to include their respective list of witnesses and documents in

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the statement. After further consideration, the Court finds that a set of proposed findings

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of fact and conclusions of law would provide a road map for the Court during the

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evidentiary hearing. Therefore, the parties are directed to include joint proposed findings

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of fact and conclusions of law in the pre-hearing statement. The Court will set a briefing

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schedule for post-hearing briefs at the evidentiary hearing’s conclusion.

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The joint pre-hearing statement is due on September 29, 2014. The parties must

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raise any issues that must be resolved by the time of the evidentiary hearing in a motion

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filed on the same date.

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DATED THIS 18th day of August 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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