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Bullion Monarch Mining, Inc. v. Barrick Gold Strike Mines, Inc.

Supreme Court of Nevada

March 26, 2015

BULLION MONARCH MINING, INC., Appellant,
v.
BARRICK GOLD STRIKE MINES, INC., Respondent

Certified questions under NRAP 5 concerning whether the rule against perpetuities applies to an area-of-interest provision in a commercial mining agreement for the payment of royalties and, if so, whether reformation of the agreement is available under NRS 111.1039. United States Court of Appeals for the Ninth Circuit; Sidney R. Thomas, Chief Circuit Judge, M. Margaret McKeown and William A. Fletcher, Circuit Judges.

Question answered.

Lewis Roca Rothgerber LLP and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas, for Appellant.

Parsons, Behle & Latimer and Michael R. Kealy, Reno; Parsons, Behle & Latimer and Francis M. Wikstrom, Salt Lake City, Utah, for Respondent.

Baker & Hostetler LLP and Mary P. Birk, Denver, Colorado, for Amicus Curiae Mary Ann Schmidt.

Cherry J., Hardesty C.J., Douglas J., Gibbons J., Parraguirre J., Saitta J., Pickering J.

OPINION

BEFORE THE COURT EN BANC.

CHERRY, J.:

The Ninth Circuit Court of Appeals certified two questions to this court concerning Nevada's rule against perpetuities. The first question asks whether Nevada's " Rule Against Perpetuities appl[ies] to an area-of-interest provision in a commercial mining agreement." The second asks whether, if the rule applies, courts may reform such agreements under NRS 111.1039(2). We accepted the certified questions and directed briefing.

We conclude that Nevada's common-law rule against perpetuities does not extend to area-of-interest royalties created by commercial mining agreements. Courts developed the rule to promote public policy by ensuring that property remained alienable. Applying the rule to area-of-interest royalty agreements does not further public policy. Our Legislature has said as much by exempting commercial, nondonative transfers from the statutory rule against perpetuities. Even though the statutory rule was not in

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effect when this agreement was made, we see no reason to disagree with the Legislature in our own policy analysis. Because we answer the first question negatively, we do not need to consider the second.

FACTS AND PROCEDURAL HISTORY

" This court's review is limited to the facts provided by the certification order. .. ." In re Fontainebleau Las Vegas Holdings, 128 Nev., , 289 P.3d 1199, 1207 ...


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