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ELKO – Nearly a year after a $3.6 million lawsuit against the City of Elko was filed by southside residents whose property was flooded by the Humboldt River, a motion to dismiss the legal action was filed by the city.

According to court documents filed in Elko District Court on Nov. 1, the City’s attorneys made a motion to dismiss the third amended complaint, stating that the City is entitled to discretionary immunity regarding actions and decisions made regarding flapper valves and culverts dating back more than three decades.

“While it is easy to question in hindsight whether the City made the correct decisions, the very purpose of discretionary immunity is to prevent such second guessing,” wrote Jack Chen Min Juan and Cody S. Mounteer, attorneys from Marquis Aurbach Coffing law firm in Las Vegas who are representing the City.

The lawsuit, filed Dec. 15, 2017, alleges that the City’s decisions to not maintain the Humboldt River and the flapper valves and gates, in addition to failing to take into account weather conditions, led to dozens of residents having their property damaged by flood water and the backing up of sewage and sewage water.

In the original court document, 60 residents sued the city for negligence, trespass, nuisance and inverse condemnation at $15,000 per cause of action, which totaled to about $3.6 million.

In the third amended complaint, 11 more plaintiffs joined the suit, raising the total amount to $4.26 million, plus attorney fees and expenses.

If the court does not grant the motion to dismiss, the City asked for an alternative action to dismiss the trespass, nuisance and inverse condemnation causes of action, which could leave the city only paying out for the negligence cause of action, which could be approximately $1,065,000.

The lawsuit was filed by attorneys Denise A. Bradshaw and Michael L. Sharp on behalf of the plaintiffs. It alleges that the City breached its duty of care to the plaintiffs; created the condition that caused flood and sewage water to flood the property; engaged in conduct that invaded the plaintiffs’ right to use their property; and made decisions that were “the proximate cause of the flooding that occurred.”

Plaintiffs also allege that the City and about 50 other individuals – corporate, associate or otherwise – were “responsible in some manner” for the damages to real and personal property that caused “emotional distress, annoyance and inconvenience,” along with a devaluation of property.

One of the main issues, repeatedly stated throughout the two court documents, is the problem with flappers on culverts that were installed to empty into the Humboldt River.

In their motion to dismiss, the City explained that the flappers either remained open because of siltation or debris propping them open, or stayed closed because of water pressure from the river.

In testimony provided on Oct. 21 for the motion to dismiss, City Manager Curtis Calder said the flapper valves and gates never worked as originally designed. Instead, the City used metal plates to cover the drop inlets and pump water back into the river, a process that has seemed to reduce flooding during summer rainstorm runoff events and assist in flood control, he said.

Calder further testified that the U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service prevented City staff from entering the river to conduct routine maintenance, which included excavating channels leading to culverts with flappers, and cleaning, even though it was ultimately ineffective once a storm or wash occurred.

Former Assistant City Manager Charles R. Williams testified on July 1 that he remembered problems with the flappers when he worked for the City between 1978 and 2003, recalling the frustrations that department supervisors had with the flappers before informally deciding to remove them.

“I do not remember who specifically ordered the flappers to be removed, but I do remember it was a consensus,” Williams said. “It was much better to have open culverts with no flappers versus having all those problems with the flappers.”

So far, two mediation hearings have taken place between the Plaintiffs and the City of Elko. The third amended complaint was filed in district court Oct. 22.

“Mediation efforts will continue pending the outcome of the City of Elko’s recently filed motion to dismiss,” Calder said in a statement on Nov. 5.

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Courts, schools & Spring Creek reporter

Staff writer for the Elko Daily Free Press

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