value of comparable parcels. Statements made at various times by the 

NTC suggest that the regulation may or may not have been intended to 

operate retroactively, but its later decision in this case suggests that the 

NTC did not intend retroactive application. 

The parcel at issue, which is owned by respondent LB 

Properties, Inc., was divided from a larger piece of land prior to the 

regulation's enactment. The parties do not dispute that the land is a 

"remainder parcel." Appellant, the Clark County Assessor, valued the 

land under the multi-factored formula in use before the enactment of NAC 

361.61038. Seeking application of the new formula, LB appealed to the 

NTC, which assigned an administrative law judge to the case. The 

administrative law judge decided that NAC 361.61038 should apply, but 

thereafter the NTC disagreed based on its position that the regulation did 

not apply retroactively. LB petitioned for judicial review and the district 

court ordered the NTC to follow the administrative law judge's decision. 

On appeal to this court, the parties primarily dispute whether 

NAC 361.61038 applies retroactively and, if so, whether it conflicts with 

Nevada's Constitution and is void. Because the regulation does not apply 

retroactively, this court need not reach the challenge to its 

constitutionality. 

Regulations generally only operate prospectively "unless an 

intent to apply them retroactively is clearly manifested." State ex rel. 

State Bd. of Equalization v. Barta, 124 Nev. 612, 622, 188 P.3d 1092, 1099 

(2008). However, there are two types of regulations: legislative and 

interpretive. Fmali Herb, Inc. v. Heckler, 715 F.2d 1385, 1387 (9th Cir. 

1983). Whereas legislative regulations implement statutory mandates, 

interpretative regulations simply interpret the statute. Id. If a regulation 

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is a first-time interpretive regulation, application to pre-existing issues 

may be permissible. Smiley v. Citibank (South Dakota), N.A., 517 U.S. 

735, 744, n.3 (1996). For example, in Smiley the Supreme Court approved 

application of an interpretive regulation that clarified an ambiguity the 

Legislature left for the agency to resolve, namely the definition of 

"interest." Smiley, 517 U.S. at 740-41. But see Pauly v. U.S. Dep't of 

Agric., 348 F.3d 1143, 1152 (9th Cir. 2003) (holding that first-time 

interpretive regulations are not generally retroactive, but where the new 

regulation is an explicit break from prior practice or the agency has 

expressly stated application would be impermissibly retroactive, it may 

not be retroactively applied). Therefore, unlike legislative regulations, 

interpretive regulations construe, but do not expand upon, the terms of a 

statute. 

Legislative regulations differ from interpretive regulations in 

that they are adopted under power delegated by the Legislature to the 

agency and establish substantive rules that create standards of conduct 

and impose new rights or duties; they do not generally apply retroactively. 

See, e.g., Jerri's Ceramic Arts, Inc., v. Consumer Prod. Safety Comm'n, 874 

F.2d 205, 207 (4th Cir. 1989) ("a substantive or legislative rule, pursuant 

to properly delegated authority, has the force of law, and creates new law 

or imposes new rights or duties."); Slippery Rock Area Sch. Dist. v. 

Unemployment Comp. Bd. of Review, 983 A.2d 1231, 1236 (Pa. Ct. App. 

2009) ("a legislative regulation establishes 'a substantive rule creating a 

controlling standard of conduct"); see generally Bowen v. Georgetown 

Univ. Hosp., 488 U.S. 204, 208 (1988) ("Retroactivity is not favored in the 

law. Thus, congressional enactments and administrative rules will not be 

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construed to have retroactive effect unless their language requires this 

result."). 

Here, NAC 361.61038 was promulgated pursuant to the 

express direction of NRS 361.4722(5). It is, as LB concedes, a substantive 

rule that establishes a standard of conduct. Specifically, it establishes a 

method of assessing and valuing properties; it does not merely construe 

the meaning of the statute. Thus, NAC 361.61038 is legislative, not 

interpretive, and does not apply retroactively. Also, NAC 361.61038 

represents an explicit break from the prior valuation method, as the prior 

method considered additional factors such as land size and shape and 

looked at the separate value of the individual piece, whereas NAC 

361.61038 focuses on the remainder parcel's contribution to the value of 

the larger parcel. Moreover, NAC 361.61038 does not specifically provide 

for retroactive application, the NTC made inconsistent statements 

regarding retroactive application when promulgating the regulation, and 

the NTC later ruled against retroactive application in the underlying case. 

The district court therefore erred by ordering the NTC to follow the 

administrative law judge's decision and value the land according to the 

apportionment formula set forth in the regulation. Because NAC 

361.61038 was enacted in 2007 and the valuation at issue occurred prior 

to that time, application of the regulation would be impermissibly 

retroactive. 

In the absence of an applicable regulatory method of 

assessment, the question then becomes whether the method the assessor 

used was proper or whether it was itself in violation of Nevada law. 

LB Properties argues that the assessor's use of the pre-2007 

method violated the holdings in Barta and State ex rel. State Board of 

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Equalization v. Bakst, 122 Nev. 1403, 148 P.3d 717 (2006), because the 

assessor's method was an "ad hoc standard" rather than a method 

formally promulgated by the agency. The district court determined, 

without analysis, that the assessor's method of calculation was in violation 

of Bakst. We disagree, because the pre-2007 method does not inherently 

lend itself to inconsistent application. 

Bakst and Barta dealt with the County Assessor's authority 

under NRS 361.260 to substantially deviate from statutorily-mandated 

methods of assessing land. See Bakst, 122 Nev. at 1414-15, 148 P.3d at 

725; Barta, 124 Nev. at 620-21, 188 P.3d at 1098. In Bakst, the assessor 

used a unique method to adjust property values—one not consistent with 

others used throughout the state. 122 Nev. at 1406, 1411, 1414, 1416, 148 

P.3d at 719, 722-23, 725-26. In deeming the assessor's methods 

unconstitutional, this court held that our Constitution requires "that the 

methods used for assessing taxes throughout the state must be uniform." 

Id. at 1413, 148 P.3d at 724 (internal quotations omitted). See also Barta, 

124 Nev. at 624, 188 P.3d at 1100 (citing Bakst and stating that "methods 

used to value taxpayers' properties play a material role in ensuring that 

the constitutional guarantee of a uniform and equal rate of assessment" 

exist in property valuations). But Bakst and Barta also recognize that the 

wide and varied differences in each property make it impossible to devise 

an absolute formula to determine value. Bakst, 122 Nev. at 1412, 148 

P.3d at 723; see also Barta 124 Nev. at 622, 188 P.3d at 1099 (upholding 

Bakst generally). Moreover, NRS 361.228(3) encourages consideration of 

property attributes "such as zoning, location, water rights, view and 

geographic features" in valuing a property, suggesting that valuations 

should account for all relevant attributes—perhaps even where 

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consideration of a particular attribute is not codified by statute or 

regulation. 

In contrast to Bakst and Barta, the record here supports the 

conclusion that the assessor's method did not lead to unequal taxation—to 

the contrary, both the administrative law judge and the NTC recognized 

that it likely led to more equitable taxation than did the method set forth 

in NAC 361.61038. Indeed, the assessor's method appears to be the one 

generally used prior to the regulation's enactment. Neither Bakst nor 

Barta states that only formal regulations may be used to assess value. 

Since the assessor's approach did not conflict with existing statute or 

practice, we therefore conclude that the assessor's methods did not violate 

the Constitution. 

For these reasons, we 

ORDER the judgment of the district court REVERSED. 

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1111c3fc 
cc: Chief Judge, The First Judicial District Court 

Hon. Robert E. Rose, Senior Justice 

James Georgeson, Settlement Judge 

Attorney General/Carson City 

Clark County District Attorney/Civil Division 

Frazer Ryan Goldberg & Arnold LLP 

Lionel Sawyer & Collins/Reno 

Carson City Clerk 

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