Given we’ve shared that a general improvement district’s (“GID’s”) Board of Trustees’ (“Board’s”) power to “fix, and from time to time increase or decrease…rates, tolls or charges other than special assessments” flows from NRS 318.197(1), and that this NRS instructs those exactments may “includ(e)…charges for the availability of service,” here we examine what are “charges for the availability of” facilities? And whether they legitimately pay the costs the District incurs to furnish recreation facilities. Although NRS 318.197 expressly uses the words “availability of service,” nowhere does it use the words “availability of facilities.” So here we answer the question whether NRS 318.197 encompasses “charges for the availability of facilities” and if so, what are those charges?

Where Does NRS 318.197 Recognize “Charges For The Availability of Facilities?” Return to NRS 318.197(1), and read it carefully: “The board may fix, and from time to time increase or decrease…charges for the availability of service.” Okay. But what about charges for the availability of facilities? After all, staff and past Boards have told us the District’s Recreation (“RFF”) and Beach (“BFF”) Facility Fees¹ represent charges “for the availability of use of the recreational facilities (therein) described.”² Notwithstanding, the answer to this question is nowhere.

Statutory Construction: Given NRS 318.197 fails to recognize rates, tolls or charges for the availability of facilities, how are we supposed to interpret that omission? To answer this question we must examine the rules of statutory construction³. There you will learn that the meaning of a statute begins and ends with its literal words⁴. Where the language is plain and unambiguous on its face, it is inappropriate to resort to any ancillary construction aids⁵. Therefore, these rules limit courts from ignoring parts of a statute in order to reach a more reasonable construction. Or as here, “to insert words…the Court believes the legislature left out, be it intentionally or inadvertently.”⁶

Dillon’s Rule: Sometimes a statute instructs how to interpret other statutes⁷. And that’s the case here⁸.

“Historically under Nevada law, the exercise of powers by a (governing) board of…(a) local government…has been governed by a common-law rule…known as Dillon’s Rule, which is named after former Chief Justice John F. Dillon of the Iowa Supreme Court who in a case from 1868, and in later treatises on the law governing local governments set forth the common-law rule defining and limiting the powers of local governments. In Nevada’s jurisprudence, the Nevada Supreme Court has adopted and applied Dillon’s Rule to county, city and other local governments (like GIDs). As applied to local government, Dillon’s Rule provides that a (governing) board…possesses and may exercise only the following powers and no others:

(a) Those…granted in express terms by the Nevada Constitution or statute;

(b) Those…necessarily or fairly implied in or incident to…powers expressly granted; and,

(c) Those…essential to the accomplishment of the declared objects and purposes of the (local government), and not merely convenient but indispensable.

(And) if there is any fair or reasonable doubt concerning the existence of a power, that doubt is (to be) resolved against the (governing) board…and the power is denied.”⁹

Given the express words of NRS 318.197 fail to recognize a charge for the mere “availability of facilities,” according to Dillon’s Ruleit does not exist. And “if there (be) any fair or reasonable doubt concerning the existence of (such) a power, (here) that doubt is (to be) resolved against (IVGID)…and the power (be) denied.”¹⁰

Expressio Unius Est Exclusio Alterius (that’s Latin by-the-way): Nevada recognizes the rule of expressio unius est exclusio alterius¹¹. That maxim of statutory construction states that “where a…statute specifies certain things, th(at) designation…excludes all others.”¹² Under this rule, GIDs do not possess the power to fix rates, tolls or charges for the mere availability of facilities because it “is a term of limitation and not enlargement in most cases. Where it is used, it prescribes all of the things or classes of things to which the statute pertains. All other possible objects of the statute are, thereby excluded, by implication.”¹³ And as a consequence,

“Court(s) may not, through judicial fiat, second-guess the legislature and decide, sua sponte, that public policy would be better served by inferring the power to fix a type of charge not expressly stated…Considerations of public policy must be declared by the legislature and not the Court(s).”¹⁴

“If the glove doesn’t fit, you must acquit!”¹⁵

Conclusion: What’s clear from the above authorities is that insofar as GIDs are concerned, there is no such thing as an “availability of facilities” charge. Therefore such a charge neither pays for persons‘ access and use of District owned public recreation facilities, nor the availability to access and use the same. We make this point because, as we’ve demonstrated elsewhere, staff and past Boards have described the RFF/BFF¹⁶ as “standby and service charges…for the availability (to persons) of use of the recreational facilities (therein) described.”¹⁷ Calling the RFF/BFF “charges…for the availability of use of the District’s public recreation facilities” is a complete misnomer.

And now you know!

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1. See page 232 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 meeting (“the 5/26/2022 Board packet“).
2. See ¶I at page 234 of the 5/26/2022 Board packet.
3. We have a page which deals with this subject, and it can be accessed at How Courts Instruct We Interpret The Powers a GID May Exercise.
4. See Arguello v. Sunset Station, Inc., 127 Nev. 365, 370, 252 P.3d 206, 209 (2011).
5. See State Farm Mut. v. Comm’r of Ins, 114 Nev. 535, 540, 958 P.2d 733 (1998); Erwin v. State of Nevada, 111 Nev. 1535, 1538, 908 P.2d 1367, 1369 (1995) [quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990)]; Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1302, 148 P.3d 790, 792-793 (2006).
6. See Saint Alphonsus Reg’l Med. Ctr. v. Gooding Cty., 159 Idaho 84, 356 P.3d 377, 382 (2015).
7. We have a page which deals with this subject, and it can be accessed at How The Legislature Instructs We Construe The Powers a GID May Exercise.
8. “As a general rule on local governmental power, Dillon’s Rule serves an important function in defining the powers of (local) government(s) and remains a vital component of Nevada law” [see NRS 244.137(5) and 268.001(5)].
9. See NRS 244.137(1) – (4) and 268.001(1) – (4).
10. See NRS 244.137(4) and 268.001(4).
11. See Nunez v. Sahara Nevada Corp., 677 F. Supp. 1471, 1477 (D. Nev. 1988).
12. See Local 1494 of the Int’l Ass’n of Firefighters v. City of Coeur d’Alene, 99 Idaho 630, 639, 586 P.2d 685, 688 (1999).
13. See ¶11 at https://www.supremecourt.gov/DocketPDF/18/18-9575/102239/20190611092122150_00000055.pdf.
14. See Nunez, Id; Saint Alphonsus Reg’l Med. Ctr. v. Gooding Cty., 159 Idaho 84, 356 P.3d 377, 382 (2015).
15. Go to https://1995blog.com/2020/09/27/quote-of-the-1990s-if-it-doesnt-fit-you-must-acquit-25-years-on/.
16. See page 232 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 meeting (“the 5/26/2022 Board packet“).
17. See ¶I at page 234 of the 5/26/2022 Board packet.