Gravel2Gavel Construction & Real Estate Law Blog

The Nevada State Contractors Board (NSCB) in its Horizons (Aug. 2014) sets forth tips designed to help Nevada contractors to contract for work and to work within Nevada’s contractors’ law. This handy checklist may be helpful to contractors in other states as well. For additional information about Nevada’s contractor’s law and for the text of the statutes and administrative code cited below, refer to the NSCB Handbook, which contains Chapter 624 of the Nevada Revised Statutes (NRS) and Chapter 624 of the Nevada Administrative Code (NAC).

NSCB’s tips include:

• Always make sure license number and monetary limits on all contracts or bids (see license classifications and link to the NSCB’s contractor listing below) — NAC § 624.640(5)
• Keep your bond current — NRS § 624.270
• Check to ensure that licenses of persons with whom you contract are valid and active — NAC § 624.650
• Be sure the name of the business under which a contractor is contracting is the same as the license number — NRS § 624.305
• Be sure that amount of the bid or contract is within the monetary limit of the contractor — NRS § 624.3015(2)
• Be sure that the contract is within the scope of work/license classification — NRS § 624.3015(3)
• Know what you are contracting for, verify the terms of the contract, and comply with the terms of the contract — NRS § 624.3013(1)
• If it’s not in your written contract, it doesn’t exist — make sure all change orders are in writing and signed by all parties — NRS § 624.3013(1)
• Leave Residential Construction Recovery Fund disclosure with client for all residential contractors — NRS § 624.520
• Provide your customer with required Notice to Owner disclosure — NRS § 624.600(1), (2) and (3), as described in NAC § 624.693 and NAC § 624.6932
• Make sure your license number is on all advertisements for your business including your vehicles, business cards, letterhead, signage, directories, newspaper, website, etc. — NRS 624.720
• Your license number should be approximately 1 1/2″ on your motor vehicle — NRS § 624.288
• If your address or other pertinent information about your business changes, notify the Nevada State Contractors Board in writing within 30 days — NAC § 624.640(3)

Nevada’s contractor license classifications include:

• Classification A: General engineering — NAC § 624.140
• Classification A: Subclassifications — NAC § 624.150
• Classification B: General building — NAC § 624.160
• Classification B: Subclassifications — NAC § 624.170
• Classification AB: General building and general engineering — NAC § 624.180
• Classification C-1: Plumbing and heating contracting; subclassifications — NAC § 624.190
• Classification C-2: electrical contracting; subclassifications — NAC § 624.200
• Classification C-3: Carpentry, maintenance and minor repairs; subclassifications — NAC § 624.210
• Classification C-4: Painting and decorating; subclassifications — NAC § 624.220
• Classification C-5: Concrete contracting — NAC § 624.230
• Classification C-6: Erecting signs; subclassifications — NAC § 624.240
• Classification C-7: Elevation and conveyance; subclassifications — NAC § 624.250
• Classification C-8: Glass and glazing contracting — NAC § 624.260
• Classification C-9: Movement of buildings — NAC § 624.270
• Classification C-10: Landscape contracting — NAC § 624.280
• Classification C-11: Spraying mixtures containing cement — NAC § 624.290
• Classification C-13: Using sheet metal — NAC § 624.300
• Classification C-14: Steel reinforcing and erection; subclassifications — NAC § 624.310
• Classification C-15: Roofing and siding; subclassifications — NAC § 624.320
• Classification C-16: Finishing floors; subclassifications — NAC § 624.330
• Classification C-17: Lathing and plastering; subclassifications — NAC § 624.340
• Classification C-18: Masonry — NAC § 624.350
• Classification C-19: Installing terrazzo and marble; subclassifications — NAC § 624.360
• Classification C-20: Tiling; subclassifications — NAC § 624.370
• Classification C-21: Refrigeration and air-conditioning; subclassifications — NAC § 624.380
• Classification C-23: Drilling wells and installing pumps, pressure tanks and storage tanks — NAC § 624.400
• Classification C-24: Erecting scaffolds and bleachers — NAC § 624.410
• Classification C-25: Fencing and equipping playgrounds — NAC § 624.420
• Classification C-26: Institutional contracting; subclassifications — NAC § 624.430
• Classification C-27: Individual sewerage — NAC § 624.440
• Classification C-28: Fabricating tanks; subclassifications — NAC § 624.450
• Classification C-30: Installing equipment to treat water — NAC § 624.470
• Classification C-31: Wrecking — NAC § 624.480
• Classification C-33: Installing industrial machinery — NAC § 624.500
• Classification C-36: Installing urethane; subclassifications — NAC § 624.530
• Classification C-37: Solar contracting; subclassifications — NAC § 624.540
• Classification C-38: Installing equipment used with liquefied petroleum and natural gas; subclassifications — NAC § 624.550
• Classification C-39: Installing heaters — NAC § 624.560
• Classification C-40: Specialties not authorized by other classifications — NAC § 624.570
• Classification C-41: Fire protection contracting; subclassifications — NAC § 624.572
• Classification C-42: Constructing, altering or improving video service networks — NAC § 624.574

Also note that Nevada’s contractors’ law includes what is referred to as a “handyman” licensing exemption (NRS § 624.031) and what are referred to as federal licensing exemptions (NRS § 624.031).

To facilitate compliance with Nevada’s contractors’ law, NSCB’s website includes a contractor listing by county which includes information about contractors holding licenses in the various classifications as well as the contractors’ monetary limit for contracts.

Additional Source: Nevada State Contractors Board, Overview of Contractor License Requirements for Nevada

On August 20, 2014, the U.S. Court of Appeals for the Fifth Circuit reviewed the lower court’s decision to grant summary judgment to the Department of the Interior in a case involving the Department’s enforcement of the Migratory Bird Treaty Act (MBTA) and the Golden Eagle Protection Act (GEPA). These laws, and the Department’s implementing rules, affect the religious practices of American Indian tribes, including “non-federally-recognized” tribes such as the plaintiffs here. The Court of Appeals concluded that the record simply did not support the lower court’s decision, and the case was remanded to the lower court for further proceedings. The case is McAllen Grace Brethren Church, et. al. v. Salazar.

The plaintiffs argued that the Department, by confiscating the feathers of Golden Eagles that are used in religious ceremonies, violated the First Amendment and their rights under the Religious Freedom Restoration Act (RFRA). Only members of federally-recognized tribes can, by rule, obtain the necessary permits to possess the feathers and other valuable materials associated with these protected species. The Court of Appeals held that the case must be remanded to the lower court to afford the government the opportunity to demonstrate that its implementation of these laws was the least restrictive means of furthering the goals of these laws consistent with the opinion of the court.

The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014), plays an important role in the Court of Appeal’s decision in McAllen. The Court of Appeals recognized that in Hobby Lobby, the Court recognized that “once the regulatory scheme has been shown to substantially burden a sincerely-held religious belief, the burden is on the government to establish that the regulation (1) advances a compelling government interest; and (2) is the least restrictive means of furthering that interest.” The Court of Appeal concluded that “on this record at this early, summary judgment stage, the government did not discharge that burden.”

Judge Jones filed a concurring opinion, in which she noted that “If the government sustains its position that the supply of eagle feathers is limited and that increasing access by non-recognized tribe members, or even by non-Indians, to eagle feathers for sacred purposes will endanger the eagles and the federally recognized tribes, the case becomes very close”.

Last year, the U.S. District Court for the District of Columbia denied a request for a preliminary injunction to stop the construction of a domestic oil pipeline known as the Flanagan South Pipeline that is to be constructed under the supervision of Enbridge Pipelines, LLC. In that decision, reported at 990 F. Supp. 2d 9 (D.D.C. 2013), the court determined that the environmental plaintiffs were unlikely to succeed on the merits of their argument that the federal defendants had violated their obligations under National Environmental Protection Act (NEPA), the Clean Water Act (CWA) or the Administrative Procedure Act (APA). On August 18, 2014, the court reviewed various pending motions for summary judgment, and again concluded that the plaintiffs’ case was without merit. The latest decision is Sierra Club, et. al. v. U.S. Army Corps of Engineers, et. al.

In the latest decision, the plaintiffs allege that the federal agencies that have approved isolated segments of the pipeline (which is being constructed almost wholly on private lands for the length of a nearly 600-mile pipeline that will transport tar sands crude oil from Pontiac, Illinois to Cushing, Oklahoma) violated their obligations under the law by not conducting a comprehensive NEPA review of the entire pipeline. The court again disagreed with this argument, noting that no federal agency has interpreted NEPA to be a mandate to conduct such a comprehensive environmental review on the basis of their authority to review the environmental impacts on only 28 miles of federal land when the vast majority of the pipeline will cross privately-held lands by virtue of agreements negotiated with the private land-owners. Accordingly, the court agreed that this is not a “major federal action” requiring a NEPA review: “neither the Corps’ [CWA] verifications nor the Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement qualify as ‘major federal actions’ under the circumstances presented”.

The court also determined that its decision is consistent with the recent DC Circuit ruling in Delaware Riverkeeper Network v. FERC, No. 13-1015, 2014 WL 2535225, at *8 (D.C. Cir. June 6, 2014), where the court of appeals held that Federal Energy Regulatory Commission (FERC) could not segment its environmental reviews where FERC was the sole permitting authority.

In the future, the U.S. Department of Transportation may be asked to review an oil spill response plan for the pipeline as a whole, but that day has not yet arrived.

In the case of Sierra Club, et. al., v. EPA, the U.S. Court of Appeals for the Ninth Circuit held that EPA cannot rely on Chevron deference to authorize its grant of a Prevention of Significant Deterioration (PSD) permit to Avenal Power Center based on superseded National Ambient Air Quality Standards (NAAQS) and Best Available Control Technology (BACT) requirements. Avenal was an Intervenor in this case which was argued in October and decided August 12.

This unusual case was triggered by EPA’s failure to process Avenal’s application on a timely basis, and an order from the U.S. District Court in the District of Columbia to EPA to come to a decision. Holding that the Clean Air Act unambiguously requires Avenal to comply with the regulations in effect at the time the permit was issued, EPA’s action was vacated because it applied the superseded, less rigid and costly regulations. EPA argued that it had the authority to apply its inherent grandfathering authority to reach an equitable decision that was fair to the applicant, which was penalized by the slow pace of EPA permitting process despite the statutory mandate to process such applications in one year. The court disagreed with this argument, pointing to the clear language of the statute, although it expressed some sympathy for Avenal’s dilemma.

On August 8, 2014, the U.S. Court of Appeals for the Eighth Circuit issued a ruling affirming the lower court’s holding that Union Pacific (UP) did not breach the tolling agreement it entered into with ASARCO, LLC while a Freedom of Information Act (FOIA) dispute was being resolved with EPA. At the conclusion of the FOIA matter, UP settled its CERCLA liability for $25 million with EPA at the Omaha, Nebraska Lead CERCLA Site by means of a court-approved consent decree.

ASARCO, as owner and operator of this large lead smelting site, paid $214 million to settle its liability as it emerged from bankruptcy. ASARCO did not file any objections to UP’s separate settlement, but later argued that UP breached its tolling agreement with ASARCO by settling with EPA. However, the courts have now ruled that UP’s settlement with EPA provided UP with statutory protection under CERCLA against any further claims by ASARCO, with the courts noting that the tolling agreement, while it tolled the statutes of limitation, reserved to the parties all other rights and defenses. Accordingly, the separate CERCLA settlement essentially trumped the tolling agreement, which the courts narrowly construed according to Nebraska law.

Interestingly, the Court of Appeals noted that it had resolved an earlier business dispute between the parties regarding the smelter nearly 100 years ago. See American Smelter and Refining Company v. Union Pacific Railroad Company, 256 F.737 (8th Cir. 1919).

The case is ASARCO, LLC v. Union Pacific Railroad Company, No. 13-12830.

In the case of CEnergy-Glenmore Wind Farm #1, LLC, v. Town of Glenmore, decided on August 7, 2014, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s ruling that the Town of Glenmore, Wisconsin’s delay and final rejection of wind farm building permits did not violate CEnery’s constitutional substantive due process rights. The proposal became very controversial, prompting the Town’s Board to rescind its earlier approval of the building permits, and the applicant alleged that it consequently lost a potentially lucrative business opportunity if the wind farms were unable to deliver power to a local utility.

The Court of Appeals held that the Board’s actions “were not arbitrary in the constitutional sense”, and that “popular opposition to a proposed land development plan is a rational and legitimate reason to delay making a decision”. Moreover, the plaintiff had other state law remedies available which it chose not to use, which further weakened its case. Finally, the Court of Appeals noted that if the plaintiff was successful, its success would cost each resident of Glenmore roughly $6000.

Yesterday, Pillsbury attorneys Ken Taber, Paula Weber, Rebecca Carr Rizzo and Stephen Asay published their advisory titled “Ban the Box” Legislation Expands Across the Country Employers Need to Update Employment Applications and Policies. The Advisory discusses the growing national movement to “Ban the Box” – i.e., to prohibit questions about a job applicant’s criminal history on employment applications.

Currently, “Ban the Box” laws are primarily targeted at public employers; however, there are increasing efforts to impose these same restrictions on private employers. New Jersey, Washington, D.C., and San Francisco have become the latest jurisdictions to pass such legislation. Laws prohibiting private employers from seeking certain information regarding criminal convictions are already in place in Hawaii, Illinois, Massachusetts, Minnesota, and Rhode Island, as well as various cities and municipalities, including Baltimore, Philadelphia, and Seattle.

Employers would be well-advised to review and update their employment applications and policies based on these increasingly common restrictions.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Ken Tabor, Paula Weber, Rebecca Carr-Rizzo, or Stephen Asay, the authors of this blog.