Matthew Sharp Presents Little Valley Fire Argument to Nevada Supreme Court

Published on December 9, 2018, by Matthew Sharp

Civil Litigation, News

Matthew Sharp Presents Little Valley Fire Argument to Nevada Supreme Court

After lower courts determined that the Nevada Division of Forestry was guilty of gross negligence in the Little Valley Fire the case has made it’s way to the Supreme Court of Nevada. On November 6, 2018 Matthew Sharp, representing victims of the fire, presented his argument to the court. Sharp argued the court should not entertain a writ, pointing out the evidence presented at the lower court is not available to the Supreme Court. Without the benefit of the complete record, Sharp reasoned, the case should be remanded for further proceedings so the case can be decided using the full record.

The Little Valley Fire was the result of a controlled burn by the Nevada Division of Forestry that grew wild and destroyed 23 homes in October of 2016. A Washoe County jury had held the Nevada Division of Forestry accountable by finding it acted grossly negligent as it failed to exercise any amount of care.

The full proceeding, along with Mr. Sharp’s argument can be can be heard here.

Below is the automated, rough translation of Mr. Sharp’s argument. It begins at the 26:51 mark of the audio.

Matt Sharp
Matthew Sharp at Nevada Supreme Court 11/6/18

26:51 mr. sharp.  Thank You your honors

26:54 mr. Hernandez and I are presenting on

26:58 behalf of the real parties in interest

27:00 so for judicial economy your time so to

27:05 speak we we had the idea that mr.

27:08 Hernandez would be available to

27:10 primarily address the public use aspect

27:14 that mr. Van Dyke just mentioned I was

27:17 going to deal with the intent element as

27:19 well as comments as to whether this is

27:22 timely as a read whether this should be

27:25 considered so I hope that we didn’t want

27:28 to repeat ourselves so that was the idea

27:30 mr. sharp could you at least you said

27:33 you would could you start with justice

27:35 Pickering’s pointed to why we should or

27:38 shouldn’t entertain the writ well our

27:41 point is reflected in the brief is this

27:43 is premature that the court should not

27:46 entertain the read if you look at

27:48 exactly what Judge Freeman did he simply

27:51 applied the elements to fret to the

27:54 allegations of the complaint and denied

27:56 a motion to dismiss that’s it I think

27:59 what this case risk is were fraught with

28:03 factual issues as you can tell in our

28:06 supplemental filings as you can tell was

28:08 going there’s a great deal of evidence

28:11 that was presented at the lower court

28:13 that this court doesn’t have the benefit

28:15 of and I think that from a policy

28:19 rationale as dangerous for a court to

28:22 make decisions of this import without

28:24 the factual record we talk about for

28:27 example let me raise an issue the serve

28:29 and I talks about in

28:31 10th well I mean I can tell you as an

28:35 officer the court we had direct evidence

28:37 of intent you don’t have that

28:39 information just judge Freeman wasn’t a

28:43 is not evaluated that information in the

28:46 context of a taking so that’s one

28:48 example that I would say this is

28:50 premature

28:50 and I think the other thing that we

28:55 should be guarded against and I guess I

28:56 analogize this to a jury trial because I

29:00 think what’s really going on here it’s

29:02 not an intent to clarify the law the law

29:05 of the elements and fritzsche are clear

29:07 what the state is proposing is to adopt

29:12 a federal standard and in a very strict

29:16 federal standard that arguably the US

29:18 Supreme Court has not even adopted and

29:21 imposed that upon the state well if you

29:24 do that in it if for example if I were

29:28 trying to adopt a new cause of action I

29:31 plead the cause of action if it’s

29:33 dismissed on a motion to dismiss I

29:35 appeal if it the motion to dismiss is

29:38 denied we go to the motion for summary

29:40 judgment if that’s denied we go to trial

29:43 at trial I propose a jury instruction

29:45 and once the record comes to this court

29:49 you can make an informed decision about

29:51 what it is that’s precisely being

29:54 requested by the appellant or by the

29:57 aggrieved party so this court can make a

29:59 decision and I think that’s

30:00 fundamentally a problem in this case so

30:04 what exactly the state is seeking to

30:07 impose and in my view is seeking to

30:11 change the law in the state of Nevada

30:13 and let me deal with that because I

30:15 want to focus a little bit on the fridge

30:17 case in context of what mr. van Dijk

30:20 referenced is this dichotomy that the

30:24 state creates between flooding and fire

30:26 which I don’t I frankly don’t see that

30:29 distinction because if you actually look

30:31 at Fritz there’s absolutely nothing in

30:33 the record of the opinion that Washoe

30:37 County intended to flood the fred’s what

30:40 they intended to do was to create an

30:42 infrastructure and the purpose of the

30:44 infrastructure

30:45 was to avoid flooding the citizens the

30:49 effect of the way it was designed the

30:51 way it was implemented caused the

30:54 physical invasion

30:55 that’s the taking well if you take this

30:57 case and you have within the plan I mean

31:00 we have a controlled burn there’s no

31:02 question that controlled burns by the

31:06 Nevada Legislature have been adopted for

31:08 the public use and if you reference

31:11 actually the SB 444 from the 1993

31:16 legislative session where you know the

31:19 beginning of each bill it will say we

31:21 the people are enacting the statue for

31:24 the following reason and you’ll see that

31:26 the idea was the common good from a

31:30 controlled burn to prevent catastrophic

31:32 wildfires to biological diversity all

31:37 sorts of things that just don’t impact

31:39 Frank Town Road so you begin with that

31:42 concept then you look at the plan itself

31:45 the plan itself specifically recognizes

31:49 that we can destroy Frank Town Road it’s

31:52 in the plan it’s characterized in the

31:55 plan and in fact within the plan they

31:58 even have a contingency when in fact the

32:01 fire does escape goes down the ridgeline

32:03 and destroys Frank Town Road so you

32:06 don’t have I mean it’s the actual effect

32:09 now it’s true that the state points out

32:14 that that the fire wasn’t expressly

32:17 listed is the goal of a controlled burn

32:20 but what is also the state is missing is

32:24 the purpose that the control burn was to

32:26 create the fire break in little Valley

32:28 that was accomplished the secondary

32:31 effect was destruction of Frank Town

32:34 Road and the reason for that secondary

32:37 effect were deliberate decisions made

32:41 both in the design and implementation of

32:44 the burn and the problem with this Court

32:47 is you don’t have that record before you

32:50 in a meaningful way so what we would

32:52 propose in our brief is that this case

32:56 should be remanded for further

32:58 proceeding

32:59 so judge Freeman can make the decision

33:02 we judge Freeman may accept their

33:04 argument they accept our argument that’s

33:07 what we have that’s why we have district

33:09 courts so that would be my primary point

33:13 in terms of why this Court should not

33:16 entertain the read I would also point

33:26 out there was discussion I think just as

33:30 Perigord II had mentioned a number of

33:33 times about the direct probable result I

33:35 mean if that’s the standard

33:37 I’m confident we would prove that but I

33:40 would point out that in fritzsche we

33:44 adopted a proximate cause standard and

33:46 if you review the federal cases which

33:50 the state relies upon they do not use a

33:53 proximate cause standard proximate cause

33:55 standard we adopted was substantial

33:58 factor and that cited to in Gutierrez

34:01 and I would say then even under the

34:06 federal cases that the state is arguing

34:10 that this Court should adopt if you

34:13 actually look at those cases there’s not

34:15 an intent element I mean if you look at

34:17 Arkansas gaming as an example there was

34:20 flooding of a property that was

34:23 increased due to government activity the

34:27 flooding caused damage just like fire

34:30 causes damage to property

34:32 the compensable taking was the damage

34:35 that was inflicted to the property just

34:37 like in our case the compensable damage

34:40 would be the damage to the property of

34:42 the citizens who had the physical

34:45 invasion of the fire and what you’ll see

34:48 in the case the justices were very clear

34:52 that intent was a relevant consideration

34:56 and as you go through the argument they

35:00 specifically say we’re not dealing with

35:02 whether intent was present because that

35:04 argument wasn’t made at the lower court

35:06 so if you go back and review the DC

35:11 Circuit case

35:12 upon remand and even the trial court

35:14 case you’ll see the whole defense of the

35:16 state was or the federal government in

35:19 that case is we didn’t intend for this

35:20 to happen the very arguments that mr.

35:24 van Dyke has met is making we didn’t

35:26 intend in having a flood control plan to

35:29 flood people downstream therefore it

35:32 can’t be a taking but the analysis

35:35 doesn’t stop there the analysis has to

35:37 be what is the deliberate decisions that

35:40 were made what were the consequences of

35:42 those decisions and was the consequence

35:45 the proximate cause of the invasion and

35:48 if those elements are met that’s a

35:50 taking so if I go back full circle in

35:53 this case we have a fire that was

35:57 adopted for the public use we have pled

36:02 in the case decisions made during the

36:05 planning and implementation of that burn

36:07 that were intended for the public use of

36:10 accomplishing the burn the consequence

36:13 of those decisions was the fire escape

36:17 little valley cause the little valley

36:18 fire caused the physical destruction and

36:21 invasion of our clients property

36:24 that’s the very elements of a taking for

36:26 public use and so I would submit that

36:29 the court should remand this case for

36:33 further consideration by the district

36:35 court mr. Schurr yes do you think you

36:38 can meaningfully distinguish ridge line

36:40 from Fritz to tests do you think they’re

36:43 they’re the same I mean how how would

36:44 you

36:45 seems the state is going with Ridgeline

36:49 seems you’re suggesting Fritz are they

36:51 meaningfully different well I mean

36:54 that’s that’s an interesting question

36:56 yar because if you look at I would say

36:59 proximate cause is substantial factor

37:01 and we know and least in the toy context

37:04 substantial factors essentially subsumed

37:06 ideas of proximate cause so in that

37:09 context I’d say they’re fairly similar

37:12 I mean direct probable result is fairly

37:16 analogous to the pattern jury

37:18 instruction on proximate cause so in

37:22 terms of that issue I

37:25 I don’t I mean it’s kind of an academic

37:27 argument that’s why I said in this case

37:29 if you use that standard that direct

37:32 probable result of the state’s conduct

37:34 was the little Valley fire

37:36 just like in France the direct probable

37:40 result of creating infrastructure where

37:43  the subdivision steered the storm water

37:46 drain into Whites Creek the consequence

37:49 of which was the flooding of the

37:50 fritzsche home so the public use in

37:52 terms of what happened to the

37:55 subdivisions upstream was accomplished

37:58 but the consequence or the proximate

38:00 cause or the direct probable result was

38:03 the flooding of the first property so I

38:06 hope that answers your question in

38:08 thinking if if unless the court has

38:13 other questions I’ll just turn it over

38:15 to mr. Hernandez