Pine View Estates Homeowners Association v. United States Environmental Protection Agency

Filing 25

ORDER granting ECF No. 24 Stipulation : All proceedings in this lawsuit are stayed until November 12, 2018. Signed by Judge Miranda M. Du on 8/13/2018. (Copies have been distributed pursuant to the NEF - DRM)

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FRANCIS C. FLAHERTY
Nevada Bar No. 5303
CASEY A. GILLHAM
Nevada Bar No. 11971
DYER LAWRENCE, LLP
2805 Mountain Street
Carson City, Nevada 89703
[phone] telephone
[phone] fax
[e-mail]
[e-mail]
Attorneys for Petitioner Pine View Estates Homeowners’ Association

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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)
) Case No. 3:16-CV-00402-MMD-WGC
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Petitioner,
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v.
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STIPULATION TO STAY MATTER
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UNTIL NOVEMBER 12, 2018
UNITED STATES ENVIRONMENTAL
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(SIXTH REQUEST)
PROTECTION AGENCY,
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Respondents.
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__________________________________________)

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TO THE UNITED STATES DISTRICT COURT:

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Petitioner, Pine View Estates Home Owners Association ("PVHOA"), and Respondent, United

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States Environmental Protection Agency ("EPA"), have agreed and hereby stipulate pursuant to

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Local Rules IA 6-1 and 6-2 as follows:

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PINE VIEW ESTATES HOMEOWNERS
ASSOCIATION,

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A.

This matter involves PVHOA's appeal of a June 2, 2016 compliance order issued by

EPA ("Compliance Order"). The stay is necessary because the appeal is approaching a resolution.

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B.

On May 14, 2018, because the appeal was approaching a resolution, the Parties

2805 Mountain Street
Carson City, Nevada 89703
[phone]

Dyer Lawrence, LLP

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requested a fifth, 90-day stay of this matter until August 14, 2018, and the Court ordered that stay

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on May 14, 2018 (ECF Nos. 21, 22). There has been substantial progress towards this resolution, but

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as discussed below, the final resolution of this matter cannot be accomplished until the final

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resolution of separate litigation involving the PVHOA, but not the EPA.

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C.

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As alluded to immediately above, the resolution of this petition is based on the

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settlement of a related matter. On September 12, 2017, PVHOA and Mark Kizer, another party

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subject to the Compliance Order, entered into a settlement agreement ("Settlement Agreement") in

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Kizer v. PTP, Inc. et al, Case No. 3:15-CV-00120-RCJ-WGC (D. Nev.) (ECF No. 338). There are

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over 200 defendants in the Kizer case, including all of the individual homeowners in Pine View

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Estates, PVHOA and the Bureau of Indian Affairs (“BIA”). The Settlement Agreement was

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contingent on the BIA’s approval of the transfer of land comprising the HOA common areas to the

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HOA in fee simple, a trust-to-fee transfer.1 The fee lands will serve as collateral for a loan to fund

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the remediation obligations detailed in the Compliance Order. The BIA approved said trust-to-fee

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transfer on October 18, 2017 and that transfer was contemplated to occur by the end of November,

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2017.
D.

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Once the land is actually transferred from trust to fee, as described in Para. C, the

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Parties in this case anticipate lodging a consent decree relating to and addressing the Compliance

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Order. The consent decree will need to be negotiated and once finalized and approved by officials

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at EPA and the United States Department of Justice, will be lodged with the Court. The Parties will

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then request that the Court approve and enter the consent decree.
E.

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On November 8, 2017, the Hon. Robert C. Jones confirmed and approved

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the Settlement Agreement described in Para. C.

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3:15-CV-00120-RCJ-WGC (D. Nev.) (ECF No. 452).
F.

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See Kizer v. PTP, Inc., Case No.

However, subsequent to Judge Jones’ approval of the Settlement Agreement in the

Settlement Agreement; specifically, attorneys representing the title insurers who are funding the

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Settlement Agreement, as well as attorneys representing individual homeowners, asserted that the

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2805 Mountain Street
Carson City, Nevada 89703
[phone]

Kizer case, a dispute arose between Kizer and some of the defendants in the implementation of the

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Dyer Lawrence, LLP

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BIA had not fully complied with the terms of the Settlement Agreement, and by extension, the

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requirements of the National Historic Preservation Act (“NHPA”) in effecting the transfer of land

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described in Para. C. Subsequently, there were extensive discussions among attorneys representing

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The BIA holds title to the land comprising Pine View Estates in trust on behalf of Kizer.
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Kizer, the title insurance companies and individual homeowners to resolve the issue of whether or

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not there has been compliance with NHPA or the terms of the Settlement Agreement in the Kizer

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case.
G.

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On April 18, 2018 counsel for Kizer sent a letter to counsel for the title insurance

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companies and counsel for defendants in the Kizer case documenting the points of dispute regarding

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implementation of the settlement agreement, setting forth Kizer’s position on those points and

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proposing final steps to resolve all points of dispute, including actions to be undertaken by BIA at

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Kizer’s request to comply with NHPA. In closing his letter, counsel for Kizer asked title insurance

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company counsel and all defense counsel to notify him immediately of any other points of dispute

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or any objection to the proposed course of action set forth in his letter. As of the submission of this

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stipulation, counsel for PVHOA is not aware of any other dispute points or objection to Kizer’s

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proposed course of action as set forth in the April 18th letter being raised by counsel for the title

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insurance companies or any defense counsel and anticipates full implementation of the settlement

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agreement approved by Judge Jones once the BIA completes all necessary steps to effectuate the

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trust-to-fee transfer detailed in Para. C supra.
H.

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On July 24, 2018 the BIA sent a letter to Nevada’s State Historic Preservation Office

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(“SHPO’) regarding BIA compliance with NHPA. SHPO may take up to thirty days to respond to

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BIA. Assuming SHPO raises no NHPA concerns within that thirty-day period, BIA will notify the

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Washoe Tribe that it has approved the trust-to-fee transfer. Thereafter, the Washoe Tribe has thirty

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days to lodge an objection to the transfer. Assuming no objection from the Washoe Tribe, which did

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not object following the BIA’s October 18, 2017 approval (Para. C supra), BIA will thereafter

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transfer fee title for the common areas to the HOA in October or November of this year. This

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transfer will trigger the consent decree process described in Para. D. supra.
I.

2805 Mountain Street
Carson City, Nevada 89703
[phone]

Dyer Lawrence, LLP

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The approval and entry of the anticipated consent decree described in Para. D would

fully resolve PVHOA’s appeal of the Compliance Order in this case.
J.

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To promote and facilitate these efforts, allow the parties to fully focus thereon, and

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avoid unnecessary litigation and discovery activity and expense during the necessary settlement and

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consent decree negotiations, the parties jointly request that this Court issue an Order staying these

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proceedings until November 12, 2018.

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Accordingly, IT IS HEREBY STIPULATED by and between the parties hereto, with the

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approval of the Court, as follows: All proceedings in this lawsuit are hereby stayed until November

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12, 2018.

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Dated: August 13, 2018.

JEFFREY H. WOOD
Acting Assistant Attorney General

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By:
/s/ Michael C. Martinez
Michael C. Martinez (CA Bar No. 275581)
[e-mail]
Environmental Defense Section
601 D Street N.W., Suite 8000
Washington D.C. 20004
Tel. [phone]

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Attorney for Respondent

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Dated: August 13, 2018.

DYER LAWRENCE, LLP
By:
/s/ Francis C. Flaherty
Francis C. Flaherty
[e-mail]
2805 Mountain Street
Carson City, Nevada 89703
[phone]
FAX: [phone]
Attorney for Petitioner.

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2805 Mountain Street
Carson City, Nevada 89703
[phone]

IT IS SO ORDERED:

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Dyer Lawrence, LLP

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________________________________
UNITED STATES DISTRICT JUDGE

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August 13,
DATED: ______________, 2018

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