“If you always tell the truth, you do not have to remember what you said.” Attributed to Mark Twain
Las Vegas, NV. The attorney for the Virgin River Water District (VVWD), Mesquite, allegedly lied to the Judge some 150 times during motion hearings in a civil case filed by Paradise Canyon (dba Wolf Creek Golf Club) against the water district.
The lying allegations came during the latest in a lengthy series of pre-trial motions in a three-year old civil case (No. A-18-774539-B) before Las Vegas District Court Judge Timothy Williams.
In this case, the owners of Paradise Canyon seek the application of Nevada’s Covenant and Good Faith law when the Virgin Valley Water Board (VVWB) sets water rates. The case originated when the board attempted to raise the Golf Course river water irrigation rates from $250 per share to originally $1,246 [i] per share presently set at $1,115.00 per share.
VVWB attorney Jedidiah (Bo) Bingham and Paradise Canyon attorney Jeff Sylvester debated for three court days existing language in an irrigation water leasing contract in the current motion hearings. The agreement written by Bingham authorizes the use of Mesquite Irrigation Company (MIC) river water shares held by the VVWB to irrigate the Wolf Creek Golf Club.
Such revenue is part of a water board scheme to establish a market for publicly owned but highly polluted river water designed to enrich Mesquite Irrigation Company (MIC and Bunkerville Irrigation Company (BIC) river water shareholders at public expense.
On Monday, June 14, Sylvester, during the second day of hearings on the contract language, reminded the Judge of the Mark Twain saying. He alleged that Bingham lied 150 times to the Judge while simultaneously and improperly adding 25 new cases and new arguments and new legal theories during his lengthy oral presentation on the most recent motion held first on May 24, continuing on June 14, and ending on June 24.
The Paradise Canyon attorney suggested that when attorneys present demonstrably false information, a Judge is no longer bound to accept the veracity of those statements.
In this motion, Sylvester argues that the language in the Bingham drafted Lease grants the owners of the Wolf Creek Golf Club rights to use the irrigation water in perpetuity as long that they pay a rate set by the water board during their annual budget meeting.
Bingham attempted to argue that language in his contract is unenforceable. That statement caused Sylvester to ask: “Did Bingham draft a provision that he knew was unenforceable?” That is counterintuitive?” Sylvester said.
Sylvester argues that lying and offering new arguments in a motion hearing requires the Plaintiffs to present counterarguments concerning the factual nature of those statements. “When you add 25 new cases and new arguments during oral presentations, it denies us our due process right and denies you [Judge Williams] as the arbitrator of the law, the opportunity to properly judge the case,” Sylvester said.
Sylvester reminded the Judge that Paradise Canyon is simply seeking an affirmation that the right to renew this Lease is an enforceable matter of law for the jury to decide. While Sylvester for Paradise Canyon agrees that the water board has the right to set the rate, he argues that the $1,115.00 rate is one that the Southern Nevada Water District (SNWA) pays for river water converted to culinary water. He points out that this case does not involve culinary water. It involves less valuable, highly polluted irrigation water, which the Wolf Creek water expert says is worth only $300 per share. He adds that river water is “too thick to drink and too thin to plow.”
Bingham contends that the owners of Wolf Creek did not notify the water board of their intent to renew their Lease within 60-days and failed to pay the required fee on time. He further argues that the Lease only allows the golf course owners a right of first refusal, which the water board can ignore at their discretion, adding that the water board declared the Lease null and void.
Not so, Sylvester says. Bingham drafted the Lease for the water board, giving Wolf Creek owners the right to lease in perpetuity if they paid a rate set by the water board during their annual budget meeting. When he includes perpetuity or perpetual in the lease language for the water board, they mean it, Sylvester contended, adding as long as they pay the rate.
We are not seeking to set that rate in perpetuity, Sylvester says. It is not an option that the board determines a rate in perpetuity, he noted. Parties only intended what they wrote is to lease the shares perpetually on an annual basis.
Sylvester accused Bingham of parsing the lease language, only granting the golf course owners a right of first refusal. Even so, such language does not allow the water board to cancel the Lease at their discretion, Sylvester said. And the only way to terminate that right was through condemnation, the attorney said, adding that no evidence exists that the VVWBs intent was anything other than the right in perpetuity. Or first refusal in perpetuity, he said.
Sylvester said that a cursory review of the annual Lease contract shows that a right of first refusal does not govern it. In this motion, the right of first refusal is not germane, he said, suggesting that what Bingham is referring to as a right of first refusal is the same as a right in perpetuity. “But call it what you will; the Lease is enforceable as a matter of law. It is not null and void as long as the owners pay the water board rate.
The water board knows that the golf course owners have Leased all the shares and paid a rent fee since at least 2005, adding that any delay occurred during the Governor’s shutdown to deal with the COVID-19 Pandemic adding that Bingham failed to mention that both he and a co-owner of Paradise Canyon were exposed to the disease and quarantined.
The water district suffered no harm from a justified delay in the rate payment since the shares held by the water board flows through MIC and Wolf Creek irrigation systems without any involvement or costs to the water district. However, the Governor’s shutdown caused Wolf Creek Golf club owners to close the course resulting in 8,000 peak season cancellations and a loss of two million dollars in revenue. Further, the owners processed unemployment applications, provided food baskets to their employees.
Further, Bingham and the water board know that the golf course would go brown without those shares, and the business would close with an immeasurable loss to the owners and the community, Sylvester said.
Less than 24 hours after opening, the Wolf Creek golf course manager delivered the lease payment to the water district. Nonetheless, according to Sylvester, the water board insisted that a failure to give a 60-day notice during the Pandemic justified denial of the Lease. “How callous that is,” the attorney said.
At least four more motion hearings are scheduled before Judge Williams. The next one at 1:30 p.m. on July 21st. A jury trial is currently set for January 24, 2022
Lying in a court hearing is a serious matter as the recent suspension of Rudy Giuliani’s state law license validates.
The 33-page order said that Giuliani’s conduct threatened the public interest, warranting its decision to suspend his license. At the same time, the committee completes an investigation into numerous complaints against him for professional misconduct.
At a minimum, numerous attorney misrepresentations in court hearings give a Judge a valid reason to grant attorney fees paid by the fabricating attorney to the opposing side.
The Virgin Valley Water Board should have an unbiased legal expert look into Bingham’s behavior in this case. Such an inquiry should include the lying allegations and his tendency to spend excessive time hashing and rehashing arguments unrelated to the motions at hand. In addition, they should inquire into his tendency to introduce new motions, new cases, and new disputes during oral presentations. The results of such behavior, if sustained, is not only excessive attorney fees but a potential for a Judge to award attorney fees to the owners of Wolf Creek in this case.
Altogether, such fees and potential penalties amount to millions of dollars paid from public funds in amounts far more than the Water Board would have earned had the arguably excess fees been paid.