FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VACATION VILLAGE, INC., 

Plaintiff-Appellee, No. 05-16173

v.  D.C. No.

CLARK CV-05-00010-RCJ COUNTY, NEVADA,

Defendant-Appellant. 

VACATION VILLAGE, INC., 

Plaintiff-Appellant, No. 05-16389

v.  D.C. No.

CLARK CV-05-00010-RCJ COUNTY, NEVADA,

Defendant-Appellee. 

In re: CEH PROPERTIES, LTD., 

Debtor,

No. 05-16406

V D.C. Nos. ACATION VILLAGE, INC.,  CV-05-00010-RCJ Plaintiff-Appellee,

ADV. No. 98-2313-

v. RCJ

CLARK COUNTY, NEVADA,

Defendant-Appellant. 

9599
In re: CEH PROPERTIES, LTD.,  No. 05-16554

Debtor, D.C. Nos.

CV-05-00010-RCJ

ADV. No. 98-2313- VACATION VILLAGE, INC.,

RCJ Plaintiff-Appellant, 

ORDER v.

AMENDING

CLARK COUNTY, NEVADA, OPINION AND

Defendant-Appellee. AMENDED

OPINION 

Appeal from the United States District Court

for the District of Nevada

Robert C. Jones, District Judge, Presiding

Argued and Submitted

April 16, 2007—San Francisco, California

Filed July 23, 2007

Amended August 10, 2007

Before: Warren J. Ferguson, Stephen Reinhardt, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

9600 VACATION VILLAGE v. CLARK COUNTY, NEVADA
COUNSEL

Kirk Lenhard, Las Vegas, Nevada, for the appellant/crossappellee.

Paul Ray, Las Vegas, Nevada, for the appellee/crossappellant. 

ORDER

The opinion filed on July 23, 2007 at slip op. 8849 is

hereby AMENDED as follows: 

Delete the paragraph at slip op. 8861 beginning “The

Rooker-Feldman doctrine holds that” and the paragraph at slip

op. 8861-62 beginning “Here, the state court stated” and

replace with: 

“The Rooker-Feldman doctrine . . . is confined to . . . cases

brought by state court losers complaining of injuries caused

9604 VACATION VILLAGE v. CLARK COUNTY, NEVADA
by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi

Basic Indus., 544 U.S. 280, 284 (2005). Thus, RookerFeldman “applies only when the federal plaintiff both asserts

as her injury legal error or errors by the state court and seeks

as her remedy relief from the state court judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004)

(emphasis in original). See also Noel v. Hall, 341 F.3d 1148,

1154-65 (9th Cir. 2003). 

Here, the state court stated only that it would dismiss the

case if and when the statute of limitations in Nevada Rule of

Civil Procedure 41(e) expired. Neither the state court’s observation that Rule 41(e) would require it to dismiss the case in

a matter of days when the mandatory five-year deadline

passed, nor the minute order reflecting the state court’s

unavailability for trial, is the equivalent of an actual order dismissing Landowners’ action. Because there was no state court

judgment from which the Landowners sought relief, RookerFeldman does not apply to bar federal jurisdiction over Landowners’ claims. 

Pursuant to General Order 5.3, this amendment does not

affect current deadlines for filing a petition for rehearing or

petition for rehearing en banc. 

IT IS SO ORDERED.

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Appellees, the owners of real property near McCarran

International Airport in Las Vegas, Nevada, brought an

inverse condemnation action against Clark County (County)

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9605
alleging that the County’s Ordinances 1221 and 1198, which

impose, respectively, height and use restrictions, constitute

takings under the Nevada Constitution. We hold that our

review of Ordinance 1221 is limited by the Nevada Supreme

Court’s decision in McCarran Int’l Airport v. Sisolak, 137

P.3d 1110 (Nev. 2006) construing Nevada state law, and,

accordingly, find that Ordinance 1221, as applied to Appellee’s property, amounts to a taking. We remand for a calculation of just compensation in light of Sisolak. We affirm the

district court’s decision that Ordinance 1198 did not effect a

taking of Appellee’s property.1

I. BACKGROUND

For more than 50 years, the County has regulated land near

McCarran Airport through the adoption of zoning ordinances.

As a result of its proximity to the airport, the real property

owned by Appellees (collectively, the Landowners)2 has been

encumbered by a number of these ordinances. 

The Landowners acquired the subject property in 1964,

intending to construct a hotel resort and casino. A portion of

the property was zoned as Rural Estates Residential (R-E),

and in 1971 the Landowners sought to rezone this portion as

Limited Resort and Apartment (H-1). The County partially

conditioned approval of the Landowners’ rezoning request on

the Landowners’ granting of the following avigation easement: 

[The County] is to have a perpetual right of flight,

ingress to and egress from the airspace over the

1We address the remaining issues raised by both parties on appeal in a

concurrently filed memorandum disposition. 

2

In ways not relevant to our decision, the ownership of the subject property has been transferred several times. For convenience, we use the term

“Landowners” to refer to the then relevant fee holder(s) throughout this

opinion. 

9606 VACATION VILLAGE v. CLARK COUNTY, NEVADA
lands herein above described, in conformity with the

air traffic rules governing the flight of aircraft to and

from the Clark County Airport . . . . It is further

understood and agreed that the grantor himself, his

heirs, successors or assignees . . . shall and do hereby

release, and agree to save harmless and indemnify,

the County of Clark from any claims whatsoever for

losses caused by noise or the psychological effects of

aircraft. 

(First Easement). By 1974, the Landowners had completed a

number of rooms, but not the entire building. The parties did

not complete the rezoning and the First Easement was not

recorded. 

In February 1981, the County enacted Ordinance 728 at

Chapter 29.50 of the Clark County Code in order to limit the

height of structures adjacent to public use airports. Ordinance

728 set a height limitation demarcated by a plane sloping

“twenty (20) feet outward for each foot upward beginning at

the end of and at the same elevation as the primary surface”

for areas designated as a “Utility Runway Visual Approach

Zone.” The parties refer to this height limitation as a “20:1”

slope surface. Ordinance 728 set a height limitation of one

hundred fifty feet above the airport elevation for areas within

a “Horizontal Zone.” 

In June 1988, the Landowners filed another rezoning

request with the County to have the R-E property reclassified

as H-1. The County conditioned its approval of the Landowners’ rezoning request on the Landowners’ granting the following avigation easement:

It is understood and agreed that [the County is] to

have perpetual right of flight, for the passage of aircraft in the air space above the surface of said premises, together with the right to cause in said air space

such noise as may be inherent in the operation of airVACATION VILLAGE v. CLARK COUNTY, NEVADA 9607
craft, now known or hereafter used for navigation of

or flight in the air using said air space or landing at,

or taking-off from or operating at, or on the premises

known as McCarran International Airport . . . . 

It is further understood the GRANTOR does hereby

agree for himself to release Clark County, Nevada,

and operators and users of the above described airfields from any claims whatsoever for losses hereafter caused by noise or the psychological effects of

aircraft noise resulting from the overflight of aircraft.

(Second Easement). The Landowners granted the Second

Easement to the County on June 21, 1988. The County reclassified the property from R-E to H-1 and granted a use permit

to the Landowners to construct and maintain a 501-room,

two-story hotel, and an 85,000-square-foot casino. According

to the Landowners, construction under the proposed design

plans began in 1989. 

On January 16, 1990, the Federal Aviation Administration

(FAA) issued a “Determination of Hazard to Air Navigation”

to the Landowners. The FAA determined that the Landowners’ previously proposed 80-foot sign, 47-foot casino and

three 76-foot hotel buildings would penetrate the approach

slope for proposed Runway 1R and thus “would have a substantial adverse impact to the safe and efficient use of navigable airspace and would be a hazard to air navigation.” 

The Landowners redesigned the proposed construction limiting the height of the structures on the property to 38 feet

above ground level 2,850 feet southwest of the approach end

of Runway 1R. On June 27, 1990, the FAA issued a “Determination of No Hazard to Air Navigation” finding that

“[a]lthough the structure has been identified as an obstruction,

. . . the proposal would not adversely affect the safe and efficient use of navigable airspace and would not be a hazard to

air navigation.” 

9608 VACATION VILLAGE v. CLARK COUNTY, NEVADA
On July 18, 1990, the County passed Ordinance 1221

which amended Chapter 29.50 of the Clark County Code. For

property in a “Precision Instrument Runway Approach Zone”

the applicable height limitation “[s]lopes fifty feet outward for

each foot upward beginning at the end of and at the same elevation as the primary surface and extending to a horizontal

distance of ten thousand feet along the extended runway centerline.” The parties refer to this height limitation as a “50:1”

slope surface. Despite this height limitation, Ordinance 1221

provides that it should not be “construed as prohibiting the

construction or maintenance of any structure to a height up to

thirty-five feet above the surface of the land in any zone.”

Ordinance 1221 also requires that before the construction of

new buildings and structures in these zones, the FAA and the

Clark County Department of Aviation must first determine

that “it does not constitute a hazard.” 

The County also adopted Ordinance 1198 at Chapter 29.51

of the Clark County Code. Ordinance 1198 establishes an

“airport environs overlay district.” The stated purpose of the

ordinance is “to provide for a range of uses compatible with

airport accident hazard and noise exposure areas and to prohibit the development of incompatible uses that are detrimental to the public health, safety and welfare in these airport

environs.” As applied, Ordinance 1198 designates 1.25 acres

of the Landowners’ property as a runway protection zone

(RPZ). Such designation limits the development of the 1.25-

acre parcel to uses such as a parking lot, a water area, or landscaping. 

On December 17, 1993, the Landowners filed a complaint

in Nevada state court alleging, among other things, inverse

condemnation of airspace and inverse condemnation of 1.25

acres in the RPZ. A jury trial was originally scheduled for

March 11, 1996 but was continued to March 24, 1997 due to

the Landowners’ illness. At the Landowners’ request, the state

court set a new trial date of September 22, 1998. 

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9609
On October 7, 1997, the Landowners filed a voluntary petition for bankruptcy under Chapter 11 in United States Bankruptcy Court for the District of Nevada and listed their inverse

condemnation claims against the County as a contingent and

unliquidated claim in their Schedule of Personal Property.

The bankruptcy court confirmed the reorganization plan on

November 24, 1998. 

Meanwhile, in Nevada state court, the Landowners reported

on September 23, 1998 that they were not ready to proceed

with trial. No other trial dates were available before the expiration of the five-year limitations period for bringing a case

to trial under Nevada Rule of Civil Procedure 41(e). The state

court denied the Landowners’ request to “put on one witness,

put on a little bit of testimony” to satisfy the rule, and stated

that absent a waiver of the limitations period by the County,

the case would be automatically dismissed when the limitations period ran under Rule 41(e). 

The Landowners then filed a motion requesting that the

period following October 7, 1997, when the bankruptcy petition was filed, not be counted in determining the five-year

period for trial under Rule 41(e) because an “automatic stay”

applied. The state court denied the Landowners’ motion, finding that no automatic stay was in place. 

The Landowners next sought relief in the bankruptcy court

from the same alleged stay. The bankruptcy court judge,

Judge Robert C. Jones, opined that he did not “think there’s

a stay in any event to lift,” but nevertheless granted the Landowners’ motion to lift “the stay.” The Landowners thereupon

removed their inverse condemnation claims to the bankruptcy

court pursuant to 28 U.S.C. § 1452 and Rule 9027 of the Federal Rules of Bankruptcy Procedure. Following the County’s

motion for partial summary judgment, the Landowners filed

a second amended complaint in which they continued to

assert their inverse condemnation claims under the Nevada

Constitution. 

9610 VACATION VILLAGE v. CLARK COUNTY, NEVADA
In April 2002, the case proceeded to a bench trial in the

bankruptcy court before Judge Jones. Both parties consented

to the entry of a final order or judgment by the bankruptcy

judge. Judge Jones was subsequently confirmed as a federal

district judge for the district of Nevada, and a year after his

confirmation, he issued Findings of Fact and Conclusions of

Law in this case that he signed as a “United States Bankruptcy Judge.” Relevant to the issues discussed in this opinion, Judge Jones (1) awarded the Landowners compensation

from the County for the taking of airspace as a result of Ordinance 1221; (2) determined that Ordinance 1198 did not result

in a taking of the 1.25 acres in the RPZ; and (3) awarded the

Landowners compensation from the County for the taking of

certain ground easements.3

On January 4, 2005, Judge Jones, in his capacity as a district court judge, entered an order sua sponte withdrawing the

bankruptcy reference. Judge Jones then entered a final judgment awarding the Landowners $10,121,686.63 in damages,

fees, and prejudgment interest. 

The County appealed and the Landowners cross-appealed.

II. GENERAL STANDARDS OF REVIEW

On appeal from a bankruptcy court’s decision, we afford no

deference to the prior decision of the district court. We review

the bankruptcy court’s conclusions of law de novo and the

bankruptcy court’s factual findings for clear error. Thus, “we

accept findings of fact made by the bankruptcy court unless

these findings leave the definite and firm conviction that a

3The final judgment includes a $287,781 award for the taking of certain

ground easements plus prejudgment interest. The County does not appeal

the district court’s finding that there was a taking of the ground easements;

the County only appeals the compensation award regarding the ground

easements for (1) lack of subject matter jurisdiction and (2) excessive

interest. We address the former argument in this opinion and the latter in

the concurrently filed memorandum disposition. 

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9611
mistake has been committed by the bankruptcy judge.” In re

Rains, 428 F.3d 893, 900 (9th Cir. 2005) (quoting Latman v.

Burdette, 366 F.3d 774, 781 (9th Cir. 2004)).

III. PRELIMINARY ISSUES

We first address a number of global challenges to the existence and exercise of jurisdiction in this case. 

A. Rooker-Feldman 

The County argues that the district court lacked subject

matter jurisdiction under the Rooker-Feldman doctrine

because any judgment rendered by that court “undercut the

state court’s ruling regarding dismissal, which was inextricably intertwined with the state law claims that the Landowners

intended to pursue in the adversary proceeding.” We disagree.

[1] “The Rooker-Feldman doctrine . . . is confined to . . .

cases brought by state court losers complaining of injuries

caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court

review and rejection of those judgments.” Exxon Mobil Corp.

v. Saudi Basic Indus., 544 U.S. 280, 284 (2005). Thus,

Rooker-Feldman “applies only when the federal plaintiff both

asserts as her injury legal error or errors by the state court and

seeks as her remedy relief from the state court judgment.”

Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir.

2004) (emphasis in original). See also Noel v. Hall, 341 F.3d

1148, 1154-65 (9th Cir. 2003). 

[2] Here, the state court stated only that it would dismiss

the case if and when the statute of limitations in Nevada Rule

of Civil Procedure 41(e) expired. Neither the state court’s

observation that Rule 41(e) would require it to dismiss the

case in a matter of days when the mandatory five-year deadline passed, nor the minute order reflecting the state court’s

unavailability for trial, is the equivalent of an actual order dis9612 VACATION VILLAGE v. CLARK COUNTY, NEVADA
missing Landowners’ action. Because there was no state court

judgment from which the Landowners sought relief, RookerFeldman does not apply to bar federal jurisdiction over Landowners’ claims. 

B. “Related to” Jurisdiction under § 1334(b) 

[3] The County also challenges whether subject matter

jurisdiction over the case lies under 28 U.S.C. § 1334(b),

which provides that federal courts shall have “original but not

exclusive jurisdiction of all civil proceedings arising under

title 11, or arising in or related to a case under title 11.” In

Celotex Corp. v. Edwards, 514 U.S. 300 (1995), the Supreme

Court described the scope of “related to” jurisdiction under

§ 1334(b): 

Proceedings “related to” the bankruptcy include (1)

causes of action owned by the debtor which become

property of the estate pursuant to 11 U.S.C. § 541,

and (2) suits between third parties which have an

effect on the bankruptcy estate. . . . The first type of

“related to” proceeding involves a claim like the

state-law breach of contract action at issue in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982).

Id. at 307 n.5 (internal citation omitted). Where the cause of

action is not of the first type of proceeding identified in

Celotex—owned by the debtor which becomes property of the

estate in bankruptcy—courts are concerned with the closeness

of the relationship between the proceeding and the bankruptcy

estate. See, e.g., Pacor Inc. v. Higgins, 743 F.2d 984, 994

(1984) (holding that where the cause of action is between

third parties, the test for “whether a civil proceeding is related

to bankruptcy is whether the outcome of that proceeding

could conceivably have any effect on the estate being administered in bankruptcy” (emphasis omitted)), In re Pegasus

Gold Corp., 394 F.3d 1189, 1193-94 (9th Cir. 2005) (adopting

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9613
a more stringent test than applied in Pacor for a claim of the

debtor that did not arise until after the confirmation of the

bankruptcy plan). 

[4] Here, the Landowners’ inverse condemnation suit falls

squarely within the “first type of ‘related to’ proceeding”

described in Celotex, 514 U.S. 307 n.5, and is thus “related

to” the bankruptcy within the meaning of § 1334(b) without

further scrutiny. Similar to the claim before the court in

Northern Pipeline, where the debtor filed a state action to

recover contract damages to augment the debtor’s estate, the

debtors in this case seek to recover on state law inverse condemnation claims that are listed as property of the estate. See

Northern Pipeline, 458 U.S. at 55-56. The present suit is “related to” the bankruptcy because it is a part of the estate, and

thus subject matter jurisdiction exists under § 1334(b). 

C. Ripeness 

[5] “Ripeness is more than a mere procedural question; it

is determinative of jurisdiction.” S. Pac. Transp. Co. v. City

of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990). Under the

Supreme Court’s decision in Williamson County Regional

Planning Commission v. Hamilton Bank, 473 U.S. 172

(1985), an as-applied taking claim is ripe only if the landowner can establish that: (1) “the government entity charged

with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue,” and (2) the landowner has sought

“compensation through the procedures the State has provided

for doing so.” Id. at 186, 194. We conclude that both of the

Landowners’ claims are ripe under this standard. 

[6] Application of the first requirement in Williamson

County (the “finality” requirement) is dependent on the nature

of the taking. See Daniel v. County of Santa Barbara, 288

F.3d 375, 382 (9th Cir. 2002). As we explain below, we follow the Nevada Supreme Court’s characterization of Ordi9614 VACATION VILLAGE v. CLARK COUNTY, NEVADA
nance 1221 as an “unconditional and permanent” taking and

a “physical occupation of private property” under the Nevada

Constitution. See Sisolak, 137 P.3d at 1123. For such takings,

the ripeness analysis of Williamson County applies in a modified form—the first requirement, that the government entity

reach a final decision regarding the application of the regulations to the property at issue, is “automatically satisfied at the

time of the physical taking” because “[w]here there has been

a physical invasion, the taking occurs at once, and nothing the

city can do or say after that point will change that fact.” Daniel, 288 F.3d at 382 (9th Cir. 2002) (quoting Hall v. City of

Santa Barbara, 833 F.2d 1270, 1281 n.28 (9th Cir. 1986)

(overruled on other grounds by Yee v. City of Escondido, 503

U.S. 519 (1992))). Thus, as to Ordinance 1221, the ripeness

doctrine does not require the Landowners to first seek and be

denied a variance to satisfy the finality requirement. 

[7] Ordinance 1198 is not a physical taking, so we must

apply an unmodified form of the Williamson County finality

requirement. Cf. Daniel, 288 F.3d at 382. Clarifying the first

prong of Williamson County, the Supreme Court held that

“once it becomes clear that . . . the permissible uses of the

property are known to a reasonable degree of certainty, a takings claim is likely to have ripened.” Palazzolo v. Rhode

Island, 533 U.S. 606, 620 (2001). Thus, in applying the finality requirement for ripeness, courts have imposed a “meaningful application requirement,” which requires that “local

decision-makers must be given an opportunity to review at

least one reasonable development proposal before an asapplied challenge to a land use regulation will be considered

ripe.” S. Pac. Transp. Co., 922 F.2d at 503. This requirement

applies “even in instances where a regulation appeared on its

face to be highly restrictive.” Id.

[8] After reviewing the record, Judge Jones found that the

Landowners met the meaningful application requirement. In

particular, he noted:

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9615
Examining the recent use applications involving the

1.25 acres reveals that Vacation Village has

requested to use that land for activities ranging from

hotel development to a temporary automobile sales

show. Vacation Village received approval for all of

these uses. However, the approvals provided that

none of the proposed activities could occur on the

1.25 acres. 

We do not find that Judge Jones clearly erred in making these

findings of fact. Based on the reasonable plans for “hotel

development” and “temporary automobile sales show” which

were denied as to the 1.25 acres in the RPZ, along with the

clearly enumerated uses for land in an RPZ in Ordinance

1198, the Landowners have satisfied the Williamson County

finality requirement as to Ordinance 1198.

The second requirement of Williamson County is also

referred to as the “exhaustion” prong. Carson Harbor Village,

Ltd. v. City of Carson, 353 F.3d 824, 827 (9th Cir. 2004). In

Carson Harbor Village, the property owner alleged that, as

applied to its property, the city’s ordinance enacting a ceiling

on rent levels for mobile home spaces amounted to a regulatory taking. Id. at 825-26. Instead of pursuing California’s

procedures for seeking just compensation, however, the property owner filed a complaint in federal district court alleging

a taking under 42 U.S.C. § 1983. Id. at 826. Applying the second prong of Williamson County, we dismissed the property

owner’s regulatory takings claim as unripe. Id. at 830. 

[9] Unlike the § 1983 claim in Carson Harbor Village, the

Landowners’ inverse condemnation claims meet the exhaustion prong of Williamson County. In Nevada, an acceptable

state procedure for obtaining just compensation for a takings

claim is the filing of an inverse condemnation lawsuit. See,

e.g., Sisolak, 137 P.3d at 1116. The Landowners initially

brought their state law inverse condemnation claims in state

court. That the case is presently in federal court is a product

9616 VACATION VILLAGE v. CLARK COUNTY, NEVADA
of 28 U.S.C. § 1334(b), not a failure to meet the ripeness

requirement of Williamson County; the nature of the Landowners’ state law inverse condemnation claims are not

changed by the exercise of federal subject matter jurisdiction.

As the Landowners are currently pursuing their state law

inverse condemnation action, we find that the exhaustion

prong of Williamson County is met as to both claims. 

[10] Because the Landowners’ claims satisfy both of Williamson County’s requirements—finality and exhaustion—we

hold that they are ripe for adjudication. 

D. Compliance with State Appeal Procedures 

[11] The Landowners argue that we should dismiss the

County’s appeal because it did not comply with N.R.S.

§ 37.170(1) which requires that in a takings case a government agency must first deposit into court the full amount of

the judgment before it may dispute a money judgment on

appeal. See State ex rel. Dep’t of Highways v. 2d Jud. Dist.

Ct., 337 P.2d 274, 276 (Nev. 1959). Federal Rule of Civil

Procedure 62(d), however, requires only that the appellant

post a supersedeas bond in order to obtain a stay on appeal.

We apply the Federal Rule. 

[12] “[F]ederal courts are to apply state substantive law and

federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465

(1965). Thus, “[w]hen a situation is covered by one of the

Federal Rules [of Civil Procedure] . . . the court has been

instructed to apply the Federal Rule,” even it “is in direct collision with the law of the relevant State.” Id. at 471-72. Rule

62(d) “is a purely procedural mechanism to preserve the status quo during a stay pending appeal of a district court decision and creates no choice of law concerns.” Bass v. 1st Pac.

Networks, Inc., 219 F.3d 1052, 1055 (9th Cir. 2000). The

County’s monetary obligations on appeal is a situation “covered by” Rule 62(d). We apply Rule 62(d) and find that the

County properly complied by posting a supersedeas bond. 

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9617
E. Dual Role of Judge Jones 

A year after his confirmation to the United States District

Court for the District of Nevada, Judge Jones issued Findings

of Fact and Conclusions of Law, which he signed as a “United

States Bankruptcy Judge.” Soon thereafter, acting in his

capacity as a district judge, Judge Jones entered an order sua

sponte withdrawing the bankruptcy reference for reasons of

judicial efficiency, and entered a final judgment. We hold that

the unique procedural history of this case does not require

reversal. 

[13] The County cites no authority for the proposition that

Judge Jones’s entering of findings of fact signed as a bankruptcy judge following his confirmation as an Article III

judge constituted reversible error. In Northern Pipeline, on

which the County’s opening brief primarily relies, the

Supreme Court was concerned with the opposite problem —

the potential for a violation of the separation of powers doctrine when the “judicial Power of the United States” is

bestowed on Article I bankruptcy judges, who lack the salary

and tenure protections of Article III. 458 U.S. at 58-60. Judge

Jones was an Article III judge, with all of the attendant benefits and protections when he entered his findings. Absent a

reasoned argument for concern, we do not find that reversal

is warranted on these facts. 

[14] Similarly, we do not find that Judge Jones’s withdrawal of reference to the bankruptcy court was reversible

error. Under 28 U.S.C. § 157(d), “[t]he district court may

withdraw, in whole or in part, any case or proceeding referred

under this section, on its own motion . . . for cause shown.”

In determining whether cause exists, we consider the following: “the efficient use of judicial resources, delay and costs to

the parties, uniformity of bankruptcy administration, the prevention of forum shopping, and other related factors.” In re

Cantor, 299 F.3d 1150, 1154 (9th Cir. 2002) (quoting Sec.

Farms v. Int’l Bhd. of Teamsters, Chauffers, Warehousemen,

9618 VACATION VILLAGE v. CLARK COUNTY, NEVADA
& Helpers, 124 F.3d 999, 1008 (9th Cir. 1997)). Judge Jones

explained that “it is necessary and appropriate to withdraw the

reference to the United States District Court of this adversary

proceeding in order to allow the undersigned to file a final

judgment.” We find that Judge Jones efficiently used judicial

resources and minimized further delay and costs to the parties

by entering final judgment at the conclusion of protracted litigation. Thus, although there may have been some abrogation

of the County’s right to an intermediate appeal from the bankruptcy court’s decision based on the precise timing of Judge

Jones’s withdrawal of the reference, see, e.g., In re Pruitt, 910

F.2d 1160, 1168 (9th Cir. 2002), we find that an examination

of all the factors identified in In re Cantor, 299 F.3d at 1154,

indicates that Judge Jones properly withdrew the reference for

cause. 

IV. ORDINANCE 1221

Our review of the Landowners’ claim that Ordinance 1221

effected a taking of airspace under the Nevada Constitution is

limited by the Nevada Supreme Court’s decision in McCarran

International Airport v. Sisolak, 137 P.3d 1110, issued after

the close of briefing in this appeal. Like the Landowners,

Sisolak also owned property near McCarran Airport and

brought an inverse condemnation action against the County

alleging that the height restrictions in Ordinance 1221 constituted a per se regulatory taking under the Nevada Constitution. Id. at 1116. Citing the Nevada constitution and statutes,

the Nevada Supreme Court first held that Sisolak had a valid

property interest in the airspace above their land up to 500

feet. Id. at 1120. The court then reasoned:

Although the airplanes flying over Sisolak’s property

are not constantly occupying the airspace in a temporal sense, the invasion is nevertheless permanent

because the right to fly through the airspace is preserved by the Ordinances and expected to continue

into the future. . . . Therefore, the Ordinances authoVACATION VILLAGE v. CLARK COUNTY, NEVADA 9619
rize a physical invasion of Sisolak’s property and

require Sisolak to acquiesce to a permanent physical

invasion. 

Id. at 1225. Based on its finding that Ordinance 1221 was a

physical invasion of Sisolak’s airspace, the Nevada Supreme

Court concluded that “under both the United States and

Nevada Constitutions, the facts of this case present a regulatory per se taking and that Sisolak is due just compensation

for the government’s physical invasion of his property.” Id. at

1121. Given the similarities between Sisolak and the present

case, we first determine the proper weight to accord to the

Nevada Supreme Court’s decision in Sisolak. 

As a general rule, “state law as announced by the highest

court of the State is to be followed.” Comm’r v. Estate of

Bosch, 387 U.S. 456, 465 (1967) (citing Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938)). However, “interpretation of

state statutes by state courts under compulsion of federal law

erroneously understood does not bind federal courts.” Breisch

v. Cent. R.R., 312 U.S. 484, 489 (1941). 

We respectfully disagree with our colleagues on the

Nevada Supreme Court concerning their interpretation of federal takings jurisprudence. No Fifth Amendment taking of the

Landowners’ property occurred under the standards set forth

in Penn Central Transportation Co. v. New York City, 438

U.S. 104 (1978). 

[15] The Landowners, however, raise inverse condemnation claims only under Article 1, Section 8(6) of the Nevada

Constitution and under the circumstances of this case, the

Nevada Supreme Court is the final arbiter of that fundamental

state charter. Despite our disagreement with the Nevada

Supreme Court’s interpretation of federal takings cases, we

cannot find that it felt compelled to interpret the Nevada Constitution in a particular manner based on those cases. Cf. Delaware v. Prouse, 440 U.S. 648, 651-53 (1979). The Nevada

9620 VACATION VILLAGE v. CLARK COUNTY, NEVADA
Supreme Court considered and rejected the argument that

Sisolak’s state constitution takings claim should be analyzed

under Penn Central, noting that “a state may place stricter

standards on its exercise of the takings power through its state

constitution or state eminent domain statutes.” 137 P.3d at

1126 (citing Kelo v. City of New London, 545 U.S. 469, 489

(2003)). In holding that Ordinance 1221 effected a taking, the

majority in Sisolak cited to the Nevada Constitution and state

statutes, as well as the decisions of other state supreme courts.

See, e.g., 137 P.3d at 1120, 1125. Justice Becker’s dissent in

Sisolak also confirms that the Nevada Supreme Court’s decision was made on state grounds: 

I realize that the majority has determined to apply

state constitutional principles to this takings analysis.

This is certainly a reasonable approach. Having said

this, I do not believe it necessary to deviate from

federal takings jurisprudence to justly evaluate

whether a compensable regulatory taking has

occurred. 

Id. at 1136 (Becker, J., dissenting). Thus, the Nevada

Supreme Court clearly found that the Nevada Constitution

defines takings more broadly than the United States Constitution and that Ordinance 1221 is a per se regulatory taking

under the Nevada Constitution.5

5

Sisolak, does not, however control the outcome of this case under principles of collateral estoppel. As a rule we “give to a state-court judgment

the same preclusive effect as would be given that judgment under the law

of the State in which the judgment was rendered.” Migra v. Warren City

Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Because Nevada courts

have not applied offensive nonmutual collateral estoppel against a state

party on a question of law, we do not apply it here. See Coeur D’Alene

Tribe v. Hammond, 384 F.3d 674, 689 (9th Cir. 2004) (“[w]e hesitate to

give preclusive effect to the previous litigation of a question of law by

estoppel against a state party when no state law precedent compels that we

do so”); Restatement (Second) of Judgments § 29 (1982). 

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9621
[16] We further find that we are bound by the Nevada

Supreme Court’s decision in Sisolak when reviewing Ordinance 1221 under the Nevada Constitution despite the existence of federal aviation regulations. Applying the Supreme

Court’s decision in Jankovich v. Indiana Toll Road Comm’n,

379 U.S. 487, 493-94 (1965), we hold that federal airport regulations do not preempt Sisolak’s application of the Nevada

Constitution’s takings clause with respect to Ordinance 1221.

In Jankovich, the operators of the Gary Municipal Airport

filed a complaint in Indiana state court alleging violations of

the city’s airport zoning ordinance which set height limitations for structures in the immediate vicinity of the airport. Id.

at 488. The Indiana Supreme Court invalidated the ordinance,

holding that such a restriction “purported to authorize an

unlawful and unconstitutional appropriation of property rights

without payment of compensation.” Id. The Supreme Court

initially granted review of the Indiana Supreme Court’s decision and then dismissed the writ of certiorari as improvidently

granted, reasoning that it did not have jurisdiction over a decision of the Indiana Supreme Court made on independent and

adequate state grounds. Id. at 489. 

Relevant to the present case, the petitioners in Jankovich

contended that the Indiana Supreme Court’s “state ground of

decision is not adequate because it is inconsistent with the

policy of the Federal Airport Act . . . and therefore founders

on the Supremacy Clause.” Id. at 492. The Supreme Court

rejected this argument, noting that the decision of the Indiana

Supreme Court “certainly does not portend the wholesale

invalidation of all airport zoning laws,” id. at 493, and the

Indiana Supreme Court’s decision that the city’s ordinance

was invalid as a taking was “compatible with the congressional policy embodied in the Federal Airport Act.” Id. at 495.

[17] The County cites no subsequent Supreme Court

authority which would call the holding of Jankovich into

question. As the Supreme Court has already spoken on a sub9622 VACATION VILLAGE v. CLARK COUNTY, NEVADA
stantially similar issue, we likewise hold that the Supremacy

Clause does not invalidate the decision of the Nevada

Supreme Court finding that height restrictions in airport zoning ordinances amount to a taking of the underlying property

requiring compensation under the Nevada Constitution. 

We now turn to the County’s challenges specific to Ordinance 1221. 

A. Constitutional Estoppel 

The County also argues that the Landowners are constitutionally estopped from claiming a taking of their airspace.

Based on the Nevada Supreme Court’s decision in City of Las

Vegas Downtown Redevelopment Agency v. Pappas, 76 P.3d

1 (Nev. 2003), we find that the Nevada Supreme Court would

not find that the Landowners have waived their claims under

the Nevada Constitution. 

[18] In Pappas, the Nevada Supreme Court declined to

apply the doctrine of constitutional waiver, but held that the

doctrine would apply to all eminent domain cases filed in the

future (post-2003). Id. at 9. We believe that the Nevada

Supreme Court would find that the holding of Pappas pertains

to the present case because “[i]nverse condemnation proceedings are the constitutional equivalent to eminent domain

actions and are governed by the same rules and principles that

are applied to formal condemnation proceedings.” County of

Clark v. Alper, 685 P.2d 943, 949 (Nev. 1984). The Landowners filed their inverse condemnation complaint in 1993, ten

years before the Pappas ruling. Thus under Pappas, the Landowners’ claims are not constitutionally estopped. 

B. Waiver by Easement 

The County argues that by granting it perpetual avigation

easements, the Landowners effectively transferred their property interest in the airspace and, therefore, cannot now bring

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9623
a claim alleging a taking of that airspace. This argument also

fails under Sisolak. 

The interpretation of the language of an easement is a matter of state law. See S.O.C., Inc. v. Mirage Casino-Hotel, 23

P.3d 243, 246 (Nev. 2001). This court is bound by the Nevada

Supreme Court’s interpretation of the perpetual avigation

easement involved in Sisolak, insofar as it does not conflict

with federal law, because the avigation easement language at

issue in this case is identical to the language considered in

Sisolak. See Sisolak, 137 P.3d at 1115-16. 

[19] The Sisolak court explained that “an easement

obtained by a government entity for public use is only as

broad as necessary for the accomplishment of the public purpose for which the easement was obtained.” Id. at 1120 (quoting S.O.C., Inc., 23 P.3d at 247). Noting that the avigation

easement did “not contain any height restriction terms,” the

court held that the easement “did not abrogate Sisolak’s property interest in the airspace or serve as a defense to the inverse

condemnation claim.” Id. Under Nevada law, the agreement

was nothing more than an “overflight easement exacted . . .

to preclude liability for aircraft noise.” Id. at 1120-21. Following Sisolak, we hold that the avigation easements are not a

defense to the taking of the Landowners’ airspace. 

C. Just Compensation for Airspace 

20The district court’s conclusion that the taking of airspace

by Ordinance 1221 was capped at the heights provided in

Ordinance 728 was predicated on its erroneous interpretation

—in light of Sisolak—of an avigation easement as waiving or

conveying the Landowners’ property interests for the airspace

above a 20:1 approach path extending from the end of the

runway. As discussed above, Sisolak holds that Nevadans

have a property interest “in the usable airspace above [their]

property up to 500 feet” notwithstanding the avigation easements granted. Sisolak, 137 P.3d at 1120. We thus remand to

9624 VACATION VILLAGE v. CLARK COUNTY, NEVADA
the district court for a determination of just compensation following Sisolak. 

To determine just compensation for a taking of airspace by

Ordinance 1221, Sisolak instructs:

Constitutional principles provide that just compensation is measured by the fair market value of the condemned property. [T]he market value of the property

should be determined by reference to the highest and

best use for which the land is available and for which

it is plainly adaptable. However, the highest and best

use must be “reasonably probable.” In determining

fair market value, the trier of fact may consider any

elements that fairly enter into the question of value

which a reasonable businessman would consider

when purchasing. 

Id. at 1128 (internal quotation marks and citations omitted).

On remand, the district court “should give ‘due consideration

. . . to those zoning ordinances that would be taken into

account by a prudent and willing buyer.’ ” City of Las Vegas

v. Bustos, 75 P.3d 351, 352 (Nev. 2003) (per curiam) (quoting

Clark County v. Alper, 685 P.2d 943, 948 (1984) (ellipses in

Bustos)).6

6For example, the Nevada Supreme Court has “permitted the trier of

fact to consider the effect that future zoning or variances may have on the

condemned property’s highest and best use when there is evidence that a

prudent purchaser would conclude that he or she would likely receive a

zoning change.” City of N. Las Vegas v. Robinson, 134 P.2d 705, 708

(Nev. 2006). See also Sisolak, 137 P.3d at 1128 (“Although evidence

regarding variance procedures is irrelevant to establish whether a property

owner is entitled to compensation for a regulatory per se taking, such evidence is still relevant in calculating the amount of compensation due.”).

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9625
V. ORDINANCE 1198

[21] Under Sisolak, Ordinance 1198 does not effect a regulatory per se taking under the Nevada Constitution of the separate parcel consisting of 1.25 acres. Outside the “two

relatively narrow categories” of regulatory per se takings —

where the regulation (1) requires an owner to suffer a permanent physical invasion of her property or (2) completely

deprives an owner of all economical beneficial use of her

property—“regulatory takings challenges are governed by the

standards set forth in Penn Central.” Sisolak, 137 P.3d at

1122 (quoting Goldblatt v. Hempstead, 369 U.S. 590, 594

(1962)). The Landowners do not set forth a claim that Ordinance 1198 amounts to a regulatory per se taking because

they do not allege that the designation of the 1.25 acres in

question as within the RPZ constitutes either a permanent

physical invasion or a complete deprivation of all economically beneficial use of that property. 

When presented with a regulatory taking that is not a per

se taking, the Nevada Supreme Court instructs that “[a] court

should consider (1) the regulation’s economic impact on the

property owner, (2) the regulation’s interference with

investment-backed expectations, and (3) the character of the

government action.” Sisolak, 137 P.3d at 1122 (quoting Penn

Central, 438 U.S. at 124). 

[22] In this case, Judge Jones evaluated the facts presented

and properly applied the Penn Central test to the Landowners’ inverse condemnation claim as it relates to Ordinance

1198. In particular, Judge Jones found that (1) the economic

impact on the Landowners was minimal because the property

in the RPZ accounted for only 5% of the Landowners’ property, and that that small portion “could still be put to use as

a water feature, as some form of landscaping, or possibly as

a parking lot,” (2) interference with reasonable investmentbacked expectations was also minimal because the regulation

furthers an important public policy of airline safety and

9626 VACATION VILLAGE v. CLARK COUNTY, NEVADA
because the initial development of the airport predated the

acquisition of the Vacation Village property, and (3) the character of the government action favors the County because airport zoning benefits the public as a whole. These factual

findings are not clearly erroneous. Accordingly, we affirm

Judge Jones’s determination that Ordinance 1198 as applied

to 1.25 acres of the Landowners’ land designated as within

the RPZ was not a taking.

VI. CONCLUSION

Following Sisolak, and in the absence of federal preemption, we have no choice but to find that Ordinance 1221, as

applied to the Landowners’ property, amounted to a regulatory per se taking under the Nevada Constitution. We remand

the district court’s award of just compensation for reconsideration in light of Sisolak. 

We affirm the district court’s decision that Ordinance 1198,

as applied to the small parcel that is part of the Landowners’

property, did not amount to a taking. 

The parties shall each bear their own costs on appeal. 

AFFIRMED IN PART and REMANDED. 

VACATION VILLAGE v. CLARK COUNTY, NEVADA 9627