Taking Nevada

A case with this much heat deserves to be observed closely.  The State of Nevada improvidently burned down a valley.  This much is not really in dispute.  What is hotly contested is whether an escaped burn can qualify as a taking under the laws of the State of Nevada.  So far, the trial court has ruled that an escaped burn can give rise to inverse condemnation liability.  The State has taken a writ petition to the Nevada Supreme Court seeking the high court’s intervention (and asking for a controlling ruling that an escaped burn cannot be a taking).  Because a writ petition does not automatically stay proceedings in the trial court, the State has moved several times for stays.  It has been denied at each turn.  Today, the latest stay application was denied by the Nevada Supreme Court, meaning that part of the case will proceed in the trial court.  One of the factors in choosing whether to grant or deny a stay is “likelihood of success” of the underlying action.

Is this foreshadowing that the Court does not think much of the State’s chances in the actual writ?  Depending on how this case is decided, it could have tremendous blowback for public agencies.