amendedcomplaint by nyeconv

VIEWS: 142 PAGES: 21

									Case 2:08-cv-01763-KJD-LRL

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1 Nancy Lord, MD Nev Bar No. 6697 2 1970 N. Leslie Rd., No. 220 3 Pahrump, NV 89060 775-751-3636 4 Attorney for Plaintiffs 5 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA ) ) CIVIL CASE ) ) NO. __________ Plaintiffs ) ) FIRST AMENDED vs. ) COMPLAINT FOR ) DECLARATORY AND NYE COUNTY, BOARD OF NYE COUNTY ) INJUNCTIVE RELIEF COMMISSIONERS, JONI EASTLEY, in her ) Official Capacity, GARY HOLLIS, in his ) Official Capacity, BORASKY, ANDREW ) “BUTCH” in his Official Capacity, ) PETER LIAKOPOULOS,in his Official ) Capacity, and MIDGE CARVER, in her ) Official Capacity; and the ) CORRECTIONAL CORPORATION OF AMERICA, ) INC. ) ) Defendants ) ______________________________________ )_______________________

7 CONCERNED CITIZENS FOR A SAFE COMMUNITY, AN ASSOCIATION; AND DONNA 8 COX, AN INDIVIDUAL 9 10 11 12 13 14 15 16 17 18 19 20 21 COMES NOW Plaintiffs,

CONCERNED

CITIZENS

FOR

A

SAFE

22 COMMUNITY, AN ASSOCIATION; AND DONNA COX, AN INDIVIDUAL by and 23 through their undersigned attorney, Nancy Lord, MD, Esq., and 24 complain for injunctive relief for violations under 42 U.S.C.A. § 25 26 Statutes. 27 28 1 4321, 4332 and supplemental claims under the Nevada Revised

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1 THE PARTIES AND JURISDICTION 2 The Parties 3 1. CONCERNED CITIZENS FOR A SAFE COMMUNITY, is an Association 4 of citizens of Pahrump, Nevada; JUDITH HOLMGREN and DONNA 5 6 7 8 2. 9 10 and specifically near the site of the proposed Correctional 11 12 13 14 15 16 study, 17 18 19 20 21 22 23 seek to enjoy the benefits of dark stars at night and a 24 25 26 3. 27 28 2 peaceful and safe rural community. The Nye County Commissioners are the county commissioners for Nye County, Nevada and include JONI EASTLEY, in her intend to continue to do so on an ongoing basis in the future. Plaintiffs’ members derive recreational, spiritual, professional, aesthetic, educational and other benefits and enjoyment from these activities. Moreover, Plaintiff’s wildlife observation, hunting and fishing. They Corporations of America, Inc. (CCA) facility. members forests limited and for to, Individual a variety Plaintiffs of purposes, use nearby Plaintiff national but not COX are Individuals and Citizens of Pahrump, Nevada, located in Nye County, Nevada. Each of the plaintiff organization and individuals described above has members who live and/or work in Pahrump, Nevdaa

including,

hiking,

backpacking,

photography,

scientific

members and Individual Plaintiffs live in Pahrump Nevada and

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1 2 3

Official Official

Capacity Capacity,

as

Chairwoman, PETER

BUTCH

BORASKY his

in

his

LIAKOUPOLIS,in

Official

Capacity, and MIDGE CARVER, in her Official Capacity. 4 5 6 7 8 9 10 overwhelming opposition by the citizens of that community. 11 12 JURISDICTION AND VENUE The court has jurisdiction over all causes of action herein pursuant to 28 USC §§ 1331, 43 USC §§ 4321, 4332, and 4. The CORRECTIONAL CORPORATION OF AMERICA, INC., is a

corporation located at 10 Burton Hills Boulevard, Nashville, Tennessee 37215 that builds and manages for profit prison facilities throughout the nation, and has agreed to contract to build such a facility in Pahrump, Nevada in spite of the

13 5. 14 15 16

supplemental jurisdiction over state law claims under 28 USC § 1367.

17 18 19 20 21 22 23 are based here. 24 25 26 27 28 3 6. Venue is proper in this Court under 28 USC § 1391(e) because a substantial part of the events or omissions giving rise to the claims occurred here in Nye County, Nevada, the proposed Correctional Corporations of America (CCA) facility is to be located here, and several of the plaintiffs and defendants

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1 STATEMENT OF FACTS 2 7. 3 4 5 6 8. 7 8 9 10 new county jail. [Orig Exh 1] 11 12 13 14 15 16 2007-07, which removed this 50,000 ft (9.5 mile) requirement 17 18 19 20 21 22 23 Group, 24 25 26 27 28 4 Trustee (OFDT), regarding Notice of a Public Scoping Meeting to Initiate the Environmental Impact Statement Process, that consultants of the Office of Federal Detention 10. from the Code on April 18, 2007 so that a prison can now be built in proximity to any and all residences. The BOCC 9. Nye County code 17.04.700.A.14.e, must be states: “The at facility fifty The the purchase price of $1,200,000. On July 21, 2006, the Pahrump Valley Times (“PVT”) featured an article entitled “Commissioners lean toward Mesquite Road for a new jail site.” This article did not concern the On July 15, 2004, United Holdings Corp. purchased 2250 E. Mesquite from Bruce M. Patterson and Ann Patterson Stahl for

Federal Detention Center; it was strictly concerned with a

[correctional

facility]

located

least

thousand (50,000) feet from a residential district.”

Board of County Commissioners (“BOCC”) voted to approve Bill

contemporaneously created and approved a new zone category of Community Facilities (“CF”). On June 5, 2007 a letter was sent from the Louis Berger

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1 2 3 11. 4 5 6 7 8 9 10

was announced on June 15, 2007 in a notice in the PVT. [Orig Exh 2] On June 19, 2007 a Public Scoping Meeting presented by U.S. Department of Justice, Office of the Federal Detention

Trustee (“OFDT”). officials (there

17 persons attend, including 7 government are more government officials in the

transcript), 1 news reporter. signed in is 9.

Maximum number of residents

OFDT has been speaking with our public The OFDT states

officials since November (Transcript, p.8). 11 12 13 14 12. 15 16

that the “process, really, with the public begins tonight” (Transcript, p.9). [Orig Exh 3] On July 11, 2007, the Regional Planning Commission (“RPC”) voted on a Master Plan Amendment and Related Zone Change Application for the Federal Detention Center to be sited at

17 18 19 20 21 22 23 Mesquite.) [Orig Exh 4] 24 25 26 27 28 5 13. On July 18, 2007, the BOCC overturned the RPC’s vote of July 17, 2007, above. Commissioner Borasky was the liaison at 2250 E. Mesquite (Items 19.a and 19.b.) This was the only

proposed site for which residents had come to the meeting to protest against. (Note: The vote was to DENY the application.

The residents have stated that they then returned

home to celebrate believing the prison will not be placed on

the RPC meeting, but, according to the Minutes of the BOCC

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1 2 3

meeting,

Commissioner

Borasky

did

not

inform

the

other

Commissioners of the residents’ protest

against the site No

which resulted in the denial by the RPC of the site. 4 5 6 7 8 9 10 14.

residents were present at this BOCC meeting to protest as they believed the RPC had the power to remove this site from contention and that the site, indeed, had been removed from contention at the 7.11.07 RPC meeting. [Orig Exh 5] On July 23, 2007, Ron Williams, County Manager, wrote to the OFDT that he has accomplished “no small feat” in obtaining a

11 12 13 14 15. 15 16 was sent to only 32 people in Pahrump, of which 22 were 17 18 19 20 16. 21 22 23 17. 24 25 26 27 28 6 site is 2250 E. Mesquite (in responses to 3 separate Between January 2-9, 2008, the OFDT stated the preferred government officials and 2 were news reporters, leaving a possible 8 residents noticed. [Orig Exh 7] On December 21, 2007, the National Environmental Protection Act (NEPA) process began. Notice in the PVT stated that the Master Plan Amendment for a Detention Facility. 6] On December 13, 2007, the Louis Berger Group forwarded the Draft Environmental Impact Statement (“DEIS”). This letter [Orig Exh

DEIS would be reviewed for a 45 day period. [Orig Exh 8]

letters).

[Orig Exh 9, FEIS, Docs. 1-3]

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1 18. 2 3

On January 9, 2008, the OFDT was made aware that there is no water, no sewer and the water table is falling at the 2250 E. Mesquite site. [Orig Exh 9, doc 3]

4 5 6 7 8 9 10 Agency 11 12 13 14 15 16 resources and air quality." After criticizing the findings 17 18 19 20 21 22 23 currently unavailable, although service could be provided by 24 25 26 27 28 7 extending a water main and wastewater collection line to the selected within site. Nye The majority have of surface been water resources and regarding the jurisdiction over ephemeral waters, Blajez Environmental Impact Statement as ED-2, Environmental notified OFDT that it had rated his Draft 20. 19. On January 16, 2008, a PVT article announced “Detention

center hearing set for tomorrow evening” and the hearing was held on January 17, 2008. ended on February 4, 2008. On January 29, 2008, the Review period ends for the DEIS [Orig Exh 10] U.S. Environmental Protection

Concerns - Insufficient Information. Nova Blajez, Manager of the Environmental Review Office wrote: “We are concerned about the potential impacts of the proposed project on water

noted: "EPA is concerned about the general uncertainty of the water supply for this project. For the two sites located within Pahrump, Nevada, the DEIS states that the potable water supply service and wastewater collection service is

County

already

appropriated

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existing groundwater allocations exceed the perennial yield of the Pahrump of by Basin. to Based on recent acre-feet Exh projections, per 9, year a is pgs.

shortfall 4 5 6 7 21. 8 9 10 projected IV-32,33). On March

65,000 the

61,000 2050.”

year

(Orig

FEIS,

14,

2008,

Defendant

Corrections

Corporation

of

America (“CCA”) records a Memorandum of Right to Purchase the 2250 E. Mesquite location. No other proposed location

had such a Memorandum attached to it. [Orig Exh 11] 11 12 13 14 15 23. 16 17 18 19 20 21 22 23 2250 E. Mesquite location. 24 25 26 27 28 8 24. On May 14, 2008, the BOCC split the 160 acre E. Mesquite location into 2 parcels of approximately 120 acres and 40 acres. (Agenda Item 17 [Orig Exh 15]) On May 16, 2008, a [Orig Exh 14, sample letter] PVT, and on April 28, 2008, the review period ended. [Orig Exh 13] Ninety nine (99) form letters dated 1.04.2008 from Pahrump citizens were received. Sixty-three (63) of these 22. On March 27, 2008, the Pahrump Mirror’s front-page headline read: “Detention center headed to Pahrump. Facility to be

built on Mesquite Ave.” [Orig Exh 12] On March 28, 2008, the Final Environmental Impact Statement (“FEIS”) began a 30-day review. Notice was given in the

were in favor of a different site and the other thirty three (33) did not specify a site. Not one letter requested the

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PVT front-page headline reads: Center is on the Way.”

“It’s Official.

Detention

It was not, however “official”; as

the Development Agreement has not yet been submitted by CCA. 4 5 6 25. 7 8 9 10 Pahrump. [Orig Exh 17] However, upon information and belief, 11 12 13 26. 14 15 16 electricity, is located in close proximity to an airport and 17 18 19 20 27. 21 22 23 meeting. 24 25 26 27 28 9 28. On August 20, 2008 a BOCC meeting to set a date, time and location for a public hearing on the proposed Development Agreement. [Orig Exh 18] This was held on September 16, 2008 the town dump and all of the heavy equipment therein, and within the habitat for the desert tortoise. On August 19, 2008, there was meeting between Pahrump Area Valley Economic Development, a private group, met with CCA representatives. Approximately 90 people attended the a 1,500 bed facility may be constructed. On June 30, 2008, CCA purchased above mentioned 120 acre (parcel no. 027-421-15) for $6,990,000, now addressed at The site had no water, no sewer, no [Orig Exh 16] On May 19, 2008, CCA secured the OFDT contract to build on the “agency preferred alternative”, i.e., the East Mesquite location. The next day, CCA put out a press release

announcing that CCA will be building a “1072-bed prison” in

2190 East Mesquite Ave.

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at the Ruud Center, which was filled to overflowing its 350 person capacity. People were turned away. The overwhelming

majority were clearly against the building of the prison. 4 5 6 7 8 9 10 21, 2008. [Orig Exh 19] 11 12 13 14 15 16 article also stated that the project was put on the fast 17 18 19 30. 20 21 22 23 against the prison. 24 25 26 27 28 10 a done deal.” The BOCC does not have an updated Development Commissioner Eastley again states “It’s track. [Orig Exh 20] On October 21, 2008 the BOCC public hearing re proposed Development Agreement is continued from September 16, 2008. The public again filled the Ruud Center to maximum capacity of 350 persons. The overwhelming majority is once again 29. On September 18, 2008, the PVT ran an article entitled During the meeting Commissioner Eastley stated: It’s a

“done deal.”

Additionally, the Agenda backup shows that the

Commissioners have all voted in favor of the Development Agreement, even though neither a motion nor a vote has yet been made. The BOCC continued the public hearing to October

“Public quiet when Nye cut distance.”

Within that article

was a quote from Commissioner Borasky showing the need to use the words “detention center” instead of “prison”. The

Agreement and continued the public hearing to December 16, 2008.

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1 31. 2 3 32. 4 5 6 7 8 9 10 33. 11 12 13 14 15 16 34. 17 18 19 35. 20 21 22 23 36. 24 25 26 27 28

A continued BOCC public hearing and possible vote on the Development Agreement is scheduled for December 16, 2008. It is well known that water is scarce in the desert and the Pahrump water table is dropping. There is no water at the site, as required by the EIS. The utility company will need

to petition the Pahrump Utility Commission to extend their tariff area. This has not been done. There is no agreement

between the utility company and CCA for water. Defendant CCA has not informed the BOCC as to whether it will drill a well, siphoning thousands of gallons of water without the purchase of water rights for the “fan” (side of Mount Charleston), where the facility is to be built, or use municipal water. No public hearings have been held by the PUC to extend their tariff area. There are no sewers at the site. The utility company does They will No

not have the right to provide sewer in this area.

have to apply to the PUC to expand their tariff area. public hearings have been held on this issue.

The proposed sewer lines will deliver sewage to Plant #3 on the Willow Creek Golf Course. receiving a large number of Utilities, Inc. is already complaints about stink and

stench in the area surrounding this plant. 11

The Willow Creek

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Golf Course is in foreclosure.

The question as to what will

happen to the treated effluent if the golf course is later used for another purpose, in light of the inordinate amount

4 5 6 7 8 37. 9 10 that it would cause a “strain” on the company to provide 11 12 13 14 15 16 that 17 18 19 20 21 38. 22 23 the fan overlooking the homes of the Pahrump Valley. 24 25 26 27 28 12 prison, because it is high on the fan and in our town area, will be seen by almost every home in the Valley. And the The infrastructure. Residents will be charged an additional The question as to who will pay for the cost of service will be rising to provide sufficient electric power to the prison given the electric company’s current infrastructure. must address this problem. The Development Agreement people of Pahrump, a of disease in prisons, has not been addressed, nor has the known “protest” of prisoners to flush all the toilets at once with solid objects in the drains. There is no electricity at the site. The electric utility,

at a recent meeting with the residents of Pahrump, stated

The

declining population, have been advised by the electric coop

8.5% on their bills.

the new infrastructure has not been addressed. Pahrump is a country town. and the moon rising. The citizens enjoy the starlight

CCA has chosen a location high up on

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1 2 3 39. 4 5 6 7 8 9 10 40.

lights at night will be unbearable for residents and the stars will no longer be visible to area residents. The area is close enough to local residences, and even a private airport, that it could facilitate the escape of

prisoners, allegedly detainees to be deported with little incentive to proceed through their deportation proceedings, which could place Pahrump residents in grave danger. Nye County Code, section 1704.510.D requires Facility (Private) to be subject to a a Detention Use

Conditional

11 12 13 14 15 16 are addressed in this Development Agreement, especially in 17 18 19 41. 20 21 22 23 five or more acres, the maximum height of a light pole, 24 25 26 27 28 13 measured from the finished grade to the top of the pole, shall be 30 feet.” lighting at 35 feet. The Development Agreement calls for The BOCC should be required to review the areas of health, safety and welfare. The Nye County Code Sec. 17.04.120 mandates that zoning Permit. Use There has been no public hearing for a Conditional There has been no Conditional Use Permit

Permit.

issued.

CCA should be held to this requirement of the Code,

as a Conditional Use Permit addresses many more issues than

disgtricts be established by structure height and it is not certain whether the CCA facility will by 40 feet or higher. The Nye County Code, section 17.04.750.5 states: “For sites

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1 2 3 42. 4 5 6 7 43. 8 9 10

this inconsistency and amend the Code, if necessary, prior to signing the Development Agreement. The Nye County Fire Department is not prepared to fight a fire in a 40’ structure. reach that high. The landfill is diagonally across from the proposed site and handles hazardous waste. There is a possibility of They have no equipment that will

hazardous spills at the landfill.

The landfill operators

have not been required to acknowledge in writing the status 11 12 13 14 15 16 and driven into the prison fences. 17 18 19 20 21 22 23 24 25 26 27 28 14 “Clark County holds a permit from the U.S. Fish & Wildlife Service authorizing ‘take’ of desert tortoises during the course of otherwise legal activities on non-federal lands. In Clark County only, discouraging burrowing owls from breeding in the consturction site on private property is allowed by collapsing tortoise burrow’s during the owl’s non-breeding season (September through February). This may 44. The endangered tortoise inhabits this location. Wildlife Opinion”. has The not yet rendered its final should U.S. Fish & “Biological not proceed In the of any hazardous spills prior to the Commissioners signing the Development Agreement because it may affect the

Development Agreement and the construction schedule.

T h e

landfill has heavy equipment which could easily be stolen

Development

Agreement

until the final Opinion is received and reviewed. Draft EIS, U.S. Fish & Wildlife noted that:

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help avoid construction delays. Prior to collapsing a burrow, always check for owls or other protected wildlife occupying the burrow for the winter. Orig Exh 21

4 5 6 45. 7 46. 8 9 10 it is aware, that indicates that the presence of a prison in 11 12 13 14 15 16 suppliers." In fact, as a chief selling point to various 17 18 19 20 21 22 23 favor Nye County." In fact, CCA is well aware that in its 24 25 26 27 28 15 facilities, sited in depressed towns such as Olney Springs, draw the majority of its employees from commuting from contracting agencies and bond sellers, the industry brags that it is able to operate efficiently by dealing with this rural area will actually contribute to economic 47. In addition, there are burrowing owls that nest in the area. The Yucca in the area have not been taken into

consideration.

They are protected plants.

The OFDT and BOCC ignore the considerable research of which

stagnation. It equates "payments for utility services" with profits, another unfounded assumption. It assumes there will be significant "purchase of goods and services from local

centralized purchasing through national, rather than local or even statewide providers. It simply can't have it both ways. It also assumes that "employment opportunities will

Pueblo, Colorado. The OFDT may not have known this, but it

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1 2 3 48. 4 5 6 7 8 9 10 11 49. 12 13 50. 14 15 16 17 18 19

should have at least challenged that assumption with some observable fact. On December 16, 2008, after being served and notified of the hearing scheduled for December 23, 2008 and nevertheless

voted unanimously to approve the Development Agreement which is to go into effect on January 5, 2009. COUNT I Violation of NEPA Failure of the Final EIS to Analyze Impacts on Old Forest Species

Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs. NEPA is the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1. Among other things, NEPA requires all agencies of the federal government to prepare a “detailed impacts statement” and that discusses the environmental all “major

of,

reasonable

alternatives

to,

Federal actions significantly affecting the quality of the 20 21 22 23 24 51. 25 26 consequences” and to “insure that environmental information 27 28 16 human environment.” 42 U.S.C. § 4332(2)(C). This statement is commonly known as an environmental impact statement

(“EIS”). The EIS process is intended “to help public officials make decisions that are based on understanding of environmental

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1 2 3

is

available

to

public

officials

and

citizens

before

decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b)-©.

4 5 6 7 8 9 10 53. 11 12 13 14 15 16 only $50,000 remediation and a fence around the area before 17 18 19 20 21 22 23 24 54. 25 26 27 28 17 grading, and that they will kill possibly “only two” analyze or take a hard look at the likely impacts on the desert tortoise, burrowing owl, and their habitats, nor the effect on the yucca plant. The FEIS has only a draft The final EIS on the CCA facility fails adequately to 52. NEPA requires that an EIS analyze “direct effects,” which are “caused by the action and occur at the same time and place,” as well as “indirect effects which . . . are later in time or farther removed in distance, but are still

reasonably foreseeable.” 40 C.F.R. § 1508.8.

biological opinion from U.S. Fish & Wildlife that requires

threatened desert tortoises. There is no agreement by CCA to implement the Reasonable and Prudent Measures set forth in the draft opinion. [Orig Exh 22]

Count II Violation of NRS 278.260 (2) Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs.

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1 55. 2 3

A

zoning

regulation,

restriction

or

boundary,

or

an

amendment thereto, must not become effective until after transmittal of a copy of the relevant application to the

4 5 6 7 8 9 10 be: 11 12 13 14 15 16 and 17 18 19 56. 20 21 57. 22 23 24 25 26 every allegation contained in the preceding paragraphs. 27 28 18 58. Count III Nuisance Plaintiffs re-allege, as if fully set forth herein, each and . . . at least 10 days before the hearing. In this case, the zoning commission denied the variance, and meetings were held on only one days notice to the public. The decision of the BOCC to over-rule the zoning commission was arbitrary and capricious. (a) Published in an official newspaper, or a newspaper of general circulation, in the city, county or region; (b) Mailed to each tenant of a mobile home park if that park is located within 300 feet of the property in question; town board, citizens' advisory council or town advisory

board pursuant to subsection 5, if applicable, and after a public hearing at which parties in interest and other

persons have an opportunity to be heard. The governing body shall cause notice of the time and place of the hearing to

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1 59. 2 3

The construction of the facility will be violation of the common law tort of nuisance to the citizens of Pahrump, including but not limited to named Plaintiffs who will have

4 5 6 7 8 60. 9 10 including but not limited to the named Plaintiffs, will be 11 12 13 14 15 16 61. 17 18 19 20 21 22 23 24 25 26 27 28 19 62. Plaintiffs re-allege, as if fully set forth herein, each and every allegation contained in the preceding paragraphs. tort of nuisance numerous as Pahrump citizens with will be forced to The construction of the facility will violate the common law endangered by the possibility of escapees potentially armed with chemicals and equipment taken from the nearby town dump and possibly even flying in aircraft stolen from the airport that is also near the proposed facility. to suffer 24 hour lighting, be deprived of the quiet rural ambience in which they chose to live, and will no longer see stars at night,. The construction of the facility will be a violation of the common law tort of nuisance as the citizens of Pahrump,

observe

busses

filled

prisoners

traveling

through its main road en route to this Honorable Court, 70 miles away from the location. Count IV Violation of Nevada Open Meeting Law, NRS 241.021

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1 63. 2 3 64. 4 5 6 65. 7 8 9 10 66. 11 12 13 67.

The June 19, 2007 was not announced in a manner to assure adequate participation by Pahrump residents. The January 17, 2008 meeting was announced with only one days notice to the public. Upon information and belief, BOCC Chairwoman Joni Eastley announced at a recent meeting of the Republican Womens’ Club that all of the Commissioners were going to vote in favor of the Development Agreement on December 16, 2008. No meeting to determine these votes was announced. The holding of the above meetings without 3 days notice to the public was arbitrary and capricious.

14 WHEREFORE, Plaintiffs accordingly pray for the following relief: 15 16 defendants, 17 18 19 20 21 22 23 24 25 26 27 28 20 persons acting in concert or participating with them from issuing permits of beginning construction of the subject of the Development Agreement, the CCA facility to be located at 2190 East Mesquite Ave., Pahrump, Nevada. B. Reasonable attorneys' fees and costs; and their agents, employees, assigns, and all A. A preliminary and permanent injunction enjoining

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1 C.

Such

other

and

further

relief

as

this

court

may

deem

2 necessary and proper. 3 Dated this 15th day of December, 2008. 4 Respectfully submitted, 5 6 7 8 Nancy Lord 9 1970 N. Leslie Rd., No. 220 Pahrump, NV 89060 10 775-751-3636 Attorney for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 S/nancylord/s __________________________ Nancy Lord, M.D. Nevada Bar No. 6697


								
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