Last month, Mesquite Nevada attorney Clifford Gravett stood before Las Vegas (NV) District Judge Timothy Williams to defend his boss Jedediah (Bo) Bingham from charges that he had engaged in “willful unlawful acts” with “ulterior motives,” and therefore he is abusing the legal process by submitting factually challenged declarations from “witnesses” in a civil suit.
The hearing was the latest in a long list of hearings resulting from a May 15, 2018, civil action filed by Paradise Canyon, the owners of the Wolf Creek Golf Course, against Bingham’s client, the Virgin Valley Water District (VVWD). Paradise Canyon owners seek halt the Water Boards’ “restrictive” pricing practices.
Ultimately, as Andrew Davey reported in Nevada-today, Judge Williams allowed the allegations of abuse of process to continue. The Judge argued that “Just because you have factual disputes, that doesn’t rise to abuse of process.” The Judge is saying that it will be up to a jury to decide on the veracity of potential witnesses.
Under U.S. law, many falsehoods—even some deliberate lies—receive the full protection of the First Amendment. That is true even though “there is no constitutional value in false statements of fact,” as Justice Lewis Powell Jr. wrote for the Supreme Court in 1974. Nonetheless, the Courts have often refused to allow governments to penalize speakers for mistakes, sloppy falsehoods, and lies.
Bingham wants the court and eventually a Jury to believe that the Virgin Valley Water Board (VVWB), a Nevada government activity, has absolute authority to set water rates. Therefore, Bingham claims the board can raise the rates on irrigation water they acquired from the Mesquite Irrigation Company (MIC) and used by Wolf Creek from $250 per share to $1,246 to $1,115.67) with impunity.
Jeffrey R. Sylvester, Attorney for Paradise Canyon (Wolf Creek), argues that rate setting activities by the VVWD board violate the good faith and dealing provisions required by Nevada contract law. He also argues that setting a market rate requires the water board to act reasonably. And, in earlier hearings, Judge Williams pointed out that the water district is a political subdivision of the State of Nevada and had to act both in good faith and without being arbitrary and capricious. They do not have a right to do whatever they want, the Judge said.
To prove his point, on May 7, 2019, Bingham took declarations under penalty of perjury, from former Water Board members Kenyon Leavitt and Mark McEwen. Much, but not all the Leavitt-McEwen declarations were worded the same by Bingham. Leavitt and McEwen both swore that they knew local irrigation water rates were intentionally set lower than the price that the Southern Nevada Water Authority (SNWA) was willing to pay for MIC irrigation water. Leavitt and McEwen swore that the lower Wolf Creek rate was only for a “period of time.” Both supported the idea of a dual rate. Both swore that Cory Clemetson, a co-owner of Paradise Canyon had pressured them to set lower rates during a 2011 rate setting board meeting.
On October 2, Leavitt made another sworn declaration under penalty of perjury to Sylvester. This time, Leavitt admitted that Clemetson had not pressured him before a 2011 board meeting, and river water shares were acquired by the Board for later conversion to potable (drinkable) water without consideration of profit. He further admitted that at one time it was the policy to not lease water outside the Virgin River Valley to SNWA.
When asked by Sylvester about “fair market rates,” in 2008, Leavitt said it was whatever somebody was willing to pay, and at that time, it was $300 for local irrigation water. He also admitted his concern for leasing water outside the valley. According to Leavitt, SNWA was taking the local irrigation water and after putting it into homes in the Las Vegas Valley, it would be difficult to get that water back. Leavitt said: “My personal opinion is that they [SNWA] could go to court and show that is where the water is going to then we could lose that asset that we had at the time.”
Leavitt admitted that In March 2011, Wolf Creek was leasing more shares than they needed, but there was no other local customer for those shares. Therefore, Wolf Creek was paying more for water to the District then they were using.
Sylvester asked Leavitt if he ever told anyone that the Water Board would have a sole and absolute distraction to change the rate in the future to the SNWA lease rate? Leavitt said “no” and admitted that, at that time, it did not occur to him that the local businesses would be forced to pay the SNWA rate.
When considering Bingham’s tactics, Sylvester has said: “Bingham is attempting to re-write history, through frivolous motions loaded with narrative histories that are totally refuted by the documentary evidence gathered to date. The Paradise canyon attorneys claim that the intent is not to resolve a legitimate discovery dispute . . .but apparently to tell its “veritably false tales to the Local Mesquite News and further disparage Wolf Creek Golf Course in the court of local public opinion.”
