FILE 

JUN 0 9 2022 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

CITY OF BOULDER CITY, A NEVADA 

MUNICIPAL CORPORATION; AND 

BOULDER CITY FIRE DEPARTMENT, 

A POLITICAL SUBDIVISION OF THE 

STATE OF NEVADA, 

Appellants, 

vs. 

BFE, LLC, A NEVADA LIMITED 

LIABILITY COMPANY, 

Res • ondent. 

No. 81036 

ORDER OF REVERSAL 

This is an appeal from a district court order granting a 

preliminary injunction, enjoining appellants from preventing respondent's 

use of a particular tank vehicle at the Boulder City Airport. Eighth Judicial 

District Court, Clark County; Timothy C. Williams, Judge. 

At the Boulder City Municipal Airport (the Airport), "[flank 

cars and tank vehicles shall not be used as storage tanks." Intl Fire Code 

§ 5704.2.2 (2012); see also Boulder City Municipal Code § 6-1-1(B) (2017) 

(stating that the Boulder City Fire Code is based on the 2012 International 

Fire Code).1These twelve words are at the heart of this dispute: The 

Boulder City Fire Department (BCFD) determined that the way respondent 

1We apply the version of the statute in effect in 2019, when the events 

giving rise to this suit took place. 
fixed-based operator BFE, LLC planned to use its newly purchased 10,000-

gallon tank vehicle at the Airport would violate International Fire Code 

(IFC) Chapter 57 because the tank vehicle would be used to store fuel. Told 

to remove the tank vehicle from the property, BFE filed suit and sought, 

among other relief, a preliminary injunction against BCFD's and the City's 

enforcement of IFC § 5704.2.2 and IFC § 105.7.8(2) (2012) (requiring a 

construction permit to install, construct, or alter a tank vehicle) as arbitrary 

and capricious. The district court granted the preliminary injunction, and 

BCFD and the City appealed, asserting the district court abused its 

discretion. We agree and reverse. 

Although the district court has discretion to grant or deny 

preliminary injunctive relief, we review its underlying factual 

determinations for clear error and substantial evidence and examine 

questions of law de novo. Univ. & Crnty. Coll. Sys. of Nev. v. Nevadans for 

Sound Gov't, 120 Nev. 712, 721, 100 P.3d 179, 187 (2004). And a party 

seeking a preliminary injunction "must show (1) a likelihood of success on 

the merits; and (2) a reasonable probability that the non-moving party's 

conduct, if allowed to continue, will cause irreparable harm . . . . Id. 

(quoting S.O.C., Inc. u. Mirage Casino-Hotel, 117 Nev. 403, 408, 23 P.3d 243, 

246 (2001)); see also Detroit Newspaper Publishers Ass'n v. Detroit 

Typographical Union No. 18, 471 F.2d 872, 876 (6th Cir. 1972) (emphasizing 

that a preliminary injunction is the strong arm of equity, which should not 

be extended to cases that are doubtful or do not come within wellestablished principles of law). "In considering preliminary injunctions, 

courts also weigh the potential hardships to the relative parties and others, 

2 
and the public interest." Univ. & Crnty. Coll. Sys. of Nev., 120 Nev. at 721, 

100 P.3d at 187. 

Here, the district court's conclusion as to BFE's likelihood of 

success on the merits rested on a mistaken application of IFC § 5704.2.2. 

The district court interpreted IFC § 5704.2.2 to mean that because all of 

BFE's tank vehicles perform some temporary storage functions, it would be 

incorrect for BCFD to characterize any one of BFE's tank vehicles as being 

used as a storage tank. That is to say, for the district court, either all of 

BFE's tank vehicles must be used as storage tanks, or none are. But the 

record discloses that BCFD was concerned about the specific ways that BFE 

intended to use its new tank vehicle, which, although mobile, has 

significantly greater storage capacity than the smaller tank vehicles BFE 

primarily uses to refuel aircraft. Specifically, it seemed to BCFD that BFE's 

goal was to avoid using the Airport fuel-storage facility that it had used for 

years by relying on its new tank vehicle to store fuel and dispense it to its 

other, smaller tank vehicles. This practice of using a large tank vehicle to 

keep fuel and dispense it to other smaller tank vehicles is different from 

using it to transport fuel to aircraft and directly refuel aircraft. And this 

difference in use undermines BFE's likelihood of success on the merits of its 

claim that BCFD was arbitrary and capricious in determining that BFE 

intended to use its tank vehicle as a storage tank, in violation of IFC § 

5704.2.2. See Boulder Oaks Cmty. Ass'n v. B & J Andrews Enters., LLC, 

125 Nev. 397, 403, 215 P.3d 27, 31 (2009) (providing that a preliminary 

injunction is available when the moving party enjoys "a reasonable 

likelihood of success on the merits"); City Council of Reno v. Irvine, 102 Nev. 

277, 280, 721 P.2d 371, 372-73 (1986) (explaining that the essence of 

3 
arbitrary and capricious government action "is most often found in an 

apparent absence of any grounds or reasons for the decision"). 

Nor are we persuaded by BFE's argument that the subsequent 

2021 passage of Boulder City Municipal Code § 9-4-8, exhibit A, section 3 

(ordinance no. 1668), has rendered this case moot. Although the ordinance 

describes what a mobile refueler is,2it does not alter the applicability of IFC 

§ 5704.2.2 at the Airport. See Personhood Neu. v. Bristol, 126 Nev. 599, 602, 

245 P.3d 572, 574 (2010) (explaining that subsequent events may render a 

case moot). While the City Council could have passed a rule explaining the 

code section's applicability—a rule specifying, for example, that a tank 

vehicle with a capacity of 10,000 gallons or less, which is moved weekly, is 

presumed not to impermissibly store fuel—it did not. So, the 2021 

ordinance does not affect the analysis above. 

Moreover, we are unable to discern to what extent, if at all, the 

City and BCFD relied on IFC § 105.7.8 as a reason to restrain BFE's 

intended use of the tank vehicle. BFE was advised to obtain a permit 

pursuant to this code section; BFE duly applied and was turned down; but 

the record does not show that the City or BCFD then held BFEs failure to 

obtain a permit against it. Rather, it appears that from the beginning 

BCFD was concerned about BFE storing fuel in its new tank vehicle. As a 

result, BFE did not meet its burden of showing that an injunction as to 

2Per that provision, a mobile refueler is "a mobile tender type vehicle 

having a cargo tank attached to the truck frame and designed for or used in 

the transportation and transfer or dispensing of fuel into or from an aircraft 

while on the Airport." 

SUPREME COURT 

OF 

NEVADA 

It)) I947A ..4141b. 

4 
BCFD's enforcement of IFC § 105.7.8 would address an ongoing or 

reasonably probable future irreparable harm. 

Finally, in granting the preliminary injunction, the district 

court equated potential loss of future goodwill with irreparable harm. But 

this was impermissibly speculative, given that BFE had never operated 

with the new tank vehicle before the City and BCFD prevented its use. This 

means that the preliminary injunction went beyond merely maintaining the 

status quo, extending its reach into the arena of preliminary injunctions 

that alter the status quo and are not lightly issued—certainly not 

considering the debate discussed above as to the facts and applicable law. 

See, e.g., King v. Saddleback Junior Coll. Dist., 425 F.2d 426, 427 (9th Cir. 

1970) (explaining that the district court abused its discretion because the 

c`preliminary injunction went beyond the preservation of the then existing 

status quo and decreed that the applicants should be permitted to register 

in violation of the regulation and prior to a determination of its validity"); 

cf. 43A C.J.S. Injunctions § 21 (Supp. 2022) (collecting cases); 43A C.J.S. 

Injunctions § 23 (noting that Imlandatory relief will be issued only in cases 

of extreme necessity, that is extraordinary, serious, great, or urgene). Also 

not cast into the balance was the public interest in preventing what, to the 

City and BCFD at least, appeared to be a violation of the fire code with 

serious potential public safety consequences. See Winter v. Nat. Res. Def 

Council, Inc., 555 U.S. 7, 20, 26 (2008) (considering the overall public 

interest and the most serious possible injuries to each party). 

For these reasons, and without opining as to discretionary-act 

immunity or the ultimate outcome of BFE's suit, see Ctr. for Biological 

Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013) (explaining that 

SUPREME COURT 

OF 

NEVADA 

101 1947A 44041. 

5 
,

J

. 

Hardesty 

Aloasbau..0 , J. 

Stiglich 

J. 

Cadish 

ki.Z4tei) , J. 

Silver 

krAdolkeemnAZ 

Parraguirre 

generally, "our decisions at the preliminary injunction phase do not 

constitute the law of the case") (internal quotation marks omitted), we 

ORDER the judgment of the district court REVERSED. 

Pickering 

poett 17P , J. (Arill2==a22''', J. 

Herndon 

cc: Hon. Timothy C. Williams, District Judge 

Thomas J. Tanksley, Settlement Judge 

Dickinson Wright PLLC 

Boulder City Attorney 

Saltzman Mugan Dushoff 

Eighth District Court Clerk 

6 

SUPREME COURT 

OF 

NEVADA 

1.0) I947A 44Egto