Contact:   Jennifer Lazovich, Partner, Kaempfer Crowell Renshaw Gronauer & Fiorentino (702) 792-7000 or jlazovich@kcnvlaw.com

LAS VEGAS – Kaempfer Crowell Renshaw Gronauer & Fiorentino (Kaempfer Crowell) is pleased to announce the following attorneys were selected as The Best Lawyers in America® 2010:

Thomas D. Amick, partner – Land Use & Zoning Law
Peter C. Bernhard, of counsel – Alternative Dispute Resolution Law, Commercial Litigation Law and Real Estate Law
Robert L. Crowell, partner – Energy Law and Government Relations Law
Mark H. Fiorentino, partner – Government Relations Law and Land Use & Zoning Law
John W. Griffin, partner – Government Relations Law
Bob Gronauer, managing partner – Land Use & Zoning Law
Christopher L. Kaempfer, partner – Government Relations Law, Land Use & Zoning Law and Real Estate Law
Jennifer Lazovich, partner – Government Relations Law
Russell M. Rowe, partner – Government Relations Law
Steven E. Tackes, partner – Energy Law

Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 32,000 leading attorneys cast almost two million votes on the legal abilities of other lawyers in their specialties, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

It is important to note that the lawyers listed in Best Lawyers have no say in deciding which specialties they are included in. They are voted into specialties entirely as a result of the votes they receive from their peers. The subspecialties listed after their names are based on information from a variety of sources.

Kaempfer Crowell is a prominent force in Nevada, serving local, regional and national clients in the real estate development, hospitality, manufacturing, energy, water and utility industries.  With offices in Las Vegas, Reno and Carson City, Kaempfer Crowell’s lawyers counsel top corporations, business owners and individuals.  The Firm’s attorneys are routinely rated among The Best Lawyers in America®, Chambers USA and Nevada’s Legal Elite. 

For more information about Kaempfer Crowell, please call (702) 792-7000 or visit www.kcnvlaw.com.  Kaempfer Crowell is a Nevada professional corporation.

Read more  http://www.nevadabusiness.com/issue/0909/1/2100

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Contact: Bob Gronauer, Managing Partner, Kummer Kaempfer, (702) 792-7000 or bgronauer@kkbrf.com

Kummer Kaempfer Announces Two New Attorneys Join Firm
New Additions Include Chairman of the Nevada Gaming Commission

LAS VEGAS – The Nevada law firm of Kummer Kaempfer today announced the addition of two new attorneys to its firm, both formerly of Bullivant Houser Bailey.  Peter Bernhard, Chairman of the Nevada Gaming Commission, and Georganne Bradley will further bolster the firm’s already extensive lineup of experience in litigation and transactional services.

In making the announcement, Bob Gronauer, Kummer Kaempfer managing partner, said that he was “both proud and humbled that two attorneys of such high caliber would come to be a part of the team at Kummer Kaempfer.  Pete Bernhard and Georganne Bradley are two of the finest and most accomplished attorneys I know, and equally as important to me and our firm, they’re also just outstanding human beings.  Our people are a reflection of our firm and its culture, and this is just a very proud day for us.”

Peter Bernhard was named Chairman of the Nevada Gaming Commission in 2001 and previously served as a member and chair of the Nevada Commission on Ethics.  During his tenure on the Gaming Commission, Bernhard presided over the two largest combinations in Nevada history – MGM- Mandalay and Harrahs – Park Place Entertainment, along with numerous licensing proceedings and for transfers of existing properties throughout the state of Nevada.  Bernhard currently represents Keep Memory Alive and the Cleveland Clinic Lou Ruvo Brain Institute, both non-profit entities dedicated to the study of neurodegenerative brain disorders such as Alzheimers, ALS and Parkinsons Disease.  In addition to his extensive experience in litigation and transactions, he lectures regularly in continuing education and training programs for the State Bar of Nevada, the University of Nevada Las Vegas and the Executive Development Program at the University of Nevada Reno.

On joining Kummer Kaempfer, Bernhard said, “I couldn’t think of a finer group of people to be associated with both professionally and personally.  Kummer Kaempfer is much more than a collection of attorneys practicing together.  They’re a team that’s totally committed to winning for their clients.  It’s a great move for me.”

Georganne Bradley was formerly of counsel with Bullivant Houser Bailey, practicing generally in the area of business, commercial and real estate transactions, corporate reorganizations and creditors’ rights.  She has served as local counsel to major Nevada resort owners in Chapter 11 reorganization proceedings.  Bradley has also represented numerous creditors, including landlords and vendors, in various bankruptcy and reorganization proceedings.  In addition, Bradley has represented purchasers, sellers, landlords and tenants in a wide variety of real estate transactions including negotiating and documenting financing of major projects.

Bradley echoed Bernhard’s sentiments on joining Kummer Kaempfer.  “As a long time Nevadan, I’m really pleased to be joining a firm with such commitment to the communities in which we work.  The people at Kummer Kaempfer – attorneys and staff – work as a team and I’m ready to hit the ground running.  It’s a difficult economy out there and I’m proud to say that in my practice areas, I’ve helped clients through some of the most difficult times in their careers, if not their lives, and assisted them during some of the most profitable periods of their careers.  It’s rewarding work and I know it’s only going to be that much more rewarding here at Kummer Kaempfer.”

Kummer Kaempfer is a prominent force in Nevada, serving local, regional, national and international clients in legislative law, real estate development, hospitality, gaming, manufacturing, service, high-technology, and energy and utilities industries.  Founded in 1994, Kummer Kaempfer is one of Nevada’s leading law firms, specializing in complex corporate transactions, commercial litigation, zoning and land use and regulatory law.

With offices in Las Vegas, Reno and Carson City, Kummer Kaempfer’s lawyers provide counsel to top corporations, business owners, corporate executive and individuals.  The firm’s attorneys are routinely rated among the best corporate, mergers and acquisitions, real estate and litigation lawyers in Nevada, including high-ranking recognition by the prestigious Chambers USA – America’s Leading Business Lawyers since its inception in 2003.  The Best Lawyers in America®; and Mountain Star Lawyers.  For more information about Kummer Kaempfer, call (702) 792-7000 or visit www.kkbrf.com. Kummer Kaempfer is a Nevada professional corporation.

Whether you currently own water rights or plan to acquire water rights in the State of Nevada, it’s important to know that beginning July 1, 2009, fines and penalties for the violation of certain provisions governing the use of water within Nevada will go into effect.  While the new regulations were adopted September 18, 2008, no process or enforceable procedures were in place to assess the fines and penalties – until now. 

As you know, water continues to be a complex, yet very important topic in Nevada.  The State Engineer’s recently adopted regulations and ability to assess penalties only enhances the responsibilities of water rights owners within Nevada.  In light of these recent changes, it is important to understand Nevada Water Law and the specific terms and conditions of your permits and certificates which serve as evidence of your ownership interest in this valuable commodity.

We not only have to safeguard water rights against cancellation or forfeiture proceedings, but now are faced with penalties should we not be good stewards of this precious resource. 

This client alert involves Nevada Revised Statutes (NRS) Chapters 533, 534, 535, and 536 which are enforced by the Nevada Division of Water Resources, Office of the State Engineer (State Engineer) and its adopted regulations within the Nevada Administrative Code (NAC). 

The New Regulations:  What it means to you and your business

The new regulations, which amend Chapter 532 of the Nevada Administrative Code, authorize the State Engineer to assess a penalty for a violation of any provision of Nevada Water Law with respect to appropriation of water rights, surface and stream water rights, underground water rights and wells, as well as dams and ditches.  Penalties may also be assessed by the State Engineer for a violation of any permit, certificate, order, decision, or regulation adopted by the State Engineer.  Finally, the newly adopted regulations also set forth procedures for a hearing before the State Engineer wherein penalties could be assessed for a violation of Nevada Water .

These new regulations are broad sweeping as they provide for the assessment of penalties not only for violations of Nevada Water Law, but specific terms and conditions of water rights permits and certificates, which are often unique to the circumstances under which the permit or certificate was issued.  Violations also include engaging in any activity without a required permit or without approval required to engage in certain activities.  Finally, a violation is also defined as the failure to perform a requirement or the failure to perform a requirement in a timely manner.

To better illustrate, one water rights owner may be assessed a fine based upon a violation of a permit term for an activity that a second water rights owner is engaged in, but because the activity is not in violation of the second owner’s permit, no fine is levied against the second owner.  One particular instance that comes to mind would be the amount of water a person is permitted to use under a particular permit or certificate issued by the State Engineer.  These amounts can vary on a case by case basis, as do related deadlines to file a proof of completion or proof of beneficial use.  Therefore, water rights holders will need to be ever vigilant in not only complying with Nevada’s Water Law, but the specific terms and conditions set forth within the permits and certificates issued by the State Engineer. 

As background, prior to September 2008 and since 2007, the State Engineer had maintained statutory authority to levy fines pursuant to Nevada Revised Statutes (NRS) NRS 533.481, NRS 534.193, NRS 535.200, and NRS 536.200, but no regulations had been adopted to set forth the procedure to enforce the law and levy fines. 

Enforcement Actions and Penalty Assessment: Three forms of action

When the State Engineer determines there is a violation, the staff may take one of three forms of action:  (1) issue a warning letter setting forth the alleged violation and request that the violation be corrected; (2) commence an administrative enforcement action; or (3) bring an action with the District Courts seeking injunctive relief to enjoin the alleged violator from continuing to engage in the unlawful activity.

If the State Engineer chooses to commence an administrative enforcement action, the water rights owner is afforded an opportunity to appear at a hearing wherein the State Engineer will make one of the following determinations:  (1) no violation; (2) a violation with no penalty assessed; or (3) find a violation and forward the same to a penalty panel to determine what penalty should be assessed.  Once a penalty has been assessed by the State Engineer, the water rights owner can negotiate with the State Engineer to settle the dispute through what is deemed to be an alternative but equal penalty.  Resolution through this process is a compromised settlement, not subject to judicial review. 

Alternatively, if the water rights owner chooses not to engage in negotiations with the State Engineer regarding the penalty, the penalty will be assessed and the owner has 30 days after the imposition of the penalty to seek a hearing before an independent advisory committee to determine if the penalty was just and proper.  The advisory committee, which is appointed by the Director of the State Department of Conservation and Natural Resources, has 30 days from the date of the appeal to schedule a hearing.  Ultimately, the advisory committee’s ruling is subject to judicial review proceedings before the District Court, providing various levels of review.

The Penalties: Monetary Fines, Reimbursement to the State Engineer, and Water Replacement

The newly adopted regulations provide the State Engineer with the discretion to assess very harsh penalties on violators, depending on the circumstances of the violation.  First, the State Engineer may assess a penalty not to exceed $10,000 per day for each violation.  Although the cap on this portion of the penalty is $10,000, the amount of the penalty accrues for each the violation is not rectified. 

Second, in addition to the administrative fine described above, the State Engineer may also assess enforcement costs.  Enforcement costs include time spent to enforce actions surrounding the violation by State Engineer staff, supervisors, as well as the Attorney General’s Office.  Additionally, the State Engineer can assess the costs associated with compliance inspections as a part of the administrative penalty.  The reimbursement of these costs, pursuant to the regulation, is at the full cost of the hourly rate of each employee, including salary, benefits, overhead and directly related costs. 

Third, the State Engineer can order that the violator replace up to 200 percent of any water that has been unlawfully used, wasted, or diverted.  Considering the cost of water today, this portion of the penalty could easily be the most expensive, and is obviously designed to deter illegal activity.

Clearly, the State Engineer has many options with respect to the penalties it can assess under these new regulations.  The amount of the total penalty assessed, however, is not purely at the discretion of the State Engineer, as the regulations provide the State Engineer with some guidance in this regard.  Finally, only time will tell the severity of penalties the State Engineer will levy on a case by case basis.

Penalty Assessment:  Six Factors to Consider

The State Engineer is to consider the following factors when assessing a penalty:  (1) the gravity of the violation, including any economic injury or impact to other persons; (2) whether the violator made significant progress toward correcting the violation and attempted to comply with any applicable orders of the State Engineer; (3) whether the violator has committed any prior violations; (4) the economic benefit, if any, derived by the violator from committing the violation; (5) in the case of unlawful use, waste, or diversion of water, the amount of water involved; and (6) any other relevant facts established at the hearing before the State Engineer.

Contact Us

Should you have any questions about your present water rights and the implication of these new regulations, please contact Sev Carlson from Kummer Kaempfer’s water law group at 702-792-7000, 775-852-3900, or by email at scarlson@kkbrf.com.

This client alert is intended for informational purposes only.  Nothing in this alert is to be considered as either creating an attorney-client relationship between the reader and Kummer Kaempfer or as rendering of legal advice.  Readers are responsible for obtaining such advice from their own legal counsel.

No client or other reader should act or refrain from acting on the basis of any information contained in this client alert without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.