Action in grouse case raises legal questions

Depending on how the Department of the Interior and the federal court reacts, Attorney General Adam Laxalt’s entry into the legal battle over the sage grouse could be very short lived.

Laxalt last week filed an amended complaint adding the state of Nevada to the lawsuit by nine counties, several small mining companies and the 96-ranch.

Gov. Brian Sandoval’s office issued a statement saying Laxalt is pursuing this case in his personal capacity and isn’t representing the state because, under Nevada Revised Statue 228.180, Laxalt needs the governor’s permission to sue on behalf of Nevada.

Sandoval continues to negotiate with Interior officials over restrictions they imposed when issuing the ruling that listing the bird as endangered was not warranted.

A statement from Sandoval’s staff said this is not the time for Nevada to sue because it could disrupt those negotiations.

The Attorney General sided with the rural counties suing to block those restrictions, which also would stay the decision that the Sage Grouse doesn’t need to be listed.

“The federal government’s one-size-fits-all sage grouse plan will greatly hinder Nevada’s growth and success and have an adverse impact on Nevada’s economy,” Laxalt said in a statement.

He charged that the plan could cause restrictions on livestock grazing, resource development and public access to some 16 million acres of public land in Nevada.

Laxalt points to NRS228.190, saying that gives his office the authority to intervene in any action involving “the public lands and to the waters therein and thereunder, located in the state of Nevada,” without requiring the governor’s permission.

He did not, however, file to intervene in the case. Instead, he simply filed an amended complaint.

It’s up to the federal court to decide whether to accept the complaint since, technically, the AG has no standing to amend the complaint until granted permission to intervene as required in the Federal Rules of Civil Procedure.

Laxalt’s amended complaint could be challenged by the Department of the Interior on grounds he needs Sandoval’s permission or on the fact that they lacked standing to intervene.

That section of NRS also raises an issue regarding the cost of any such litigation: “The Attorney General shall not obligate the state in any intervention or appearance for any costs or expenses.”

Laxalt’s statement last week said the other parties in the case are funding the litigation. But if he ends up needing money, it would have to be approved by the Board of Examiners. With Sandoval a “no” vote and Laxalt voting “yes,” that would leave the decision to the third member of Board of Examiners, Secretary of State Barbara Cegavske.

Even if she backed Laxalt, the spending would have to be approved by the Interim Finance Committee — a potentially much tougher challenge.