I’m not a fan of the data-center moratorium. We’re a giant desert in the middle of nowhere that got rich and famous for letting people do things that they’re not allowed to do anywhere else. Data centers don’t seem any different to me. Yes, there are water issues, but you solve that by making them buy enough water rights to service the data center, not by banning all development.
I agree, but at the same time what’s happening in Box Elder County, Utah is quite over-the-top. A moratorium may be overdoing it, but what’s happening in Utah is concerning, at least how it’s happening.
We have been experiencing a severe drought forever. Lake Mead is dangerously low. We do not have enough water to sustain data centers. They need to go somewhere else, without severe water issues. They claim the water can be reclaimed. This is not true. And if it is remotely possible, then they should ship it in by truck from someplace that has water. Data centers create heat islands and can raise the temperature of the area by 10 degrees or more. Billionaire vanity projects should not come at the expense of people or the environment. But I agree, we don’t need moratoriums. They need to be banned entirely.
The heat island thing has been debunked (https://andymasley.com/writing/data-centers-heat-exhaust-is-not/). And the Utah data center is a good example why water is not a real issue – that data center (if it’s built) will use water rights purchased from ranchers, so it won’t lead to any net loss of water. Obviously the State Engineer needs to impose the same requirement on data centers here.
Water used by ranchers goes to feed cover crops (mostly) with some for watering the cattle directly. It soaks into and recharges the reservoir (at least somewhat). And it is true that stock tank/pond loss is signficant, but this can be mitigated somewhat by design etc. Data centers use water for evaporative cooling. The water evaporates into the air and the loss is the point.
Data centers dont have to use open loop cooling, they can use dry cooling (a/c) or direct to chip liquid cooling, but these are more costly.
I am all for the data centers. They will undoubtedly use solar power, so limited energy pull, and their presence here will create (hopeful) long lasting jobs that move with AI and not against it. Plus depending on location, they might get water rights from Tahoe or build some snow runoff. I would rather they come here and create jobs for Nevadans than go somewhere else.
1:18 here.
I was wrong. There is authority that with the right soil permeability, about 20 to as much as 30% of the water not taken up by the crops can recharge an aquifer.
Hmm…the CPU in my home computer is water cooled, and so is the engine in my car. In both cases the water is pushed through a radiator, cooled and recycled. My understanding that the data centers will do the same.
Much of it is recycled, some is lost. Also, many times the water use estimate will be extremely high number because it’s counting the water use of electricity generation as well. That may be fair or it might not be — the electricity may be generated somewhere there’s plenty of water. The data-center debate is so heated that a lot of these details get lost.
Member
anonymous1038572
May 15, 2026 11:28 am
Curious to hear people’s thoughts on the new anti-SLAPP opinion, 142 Nev. Adv. Op. 36. Maybe I’m missing something, but the court’s analysis seems way off. The opinion appears to analyze whether the anti-SLAPP movant presented evidence establishing the truth of the allegedly defamatory statement itself, rather than whether the movant presented evidence (e.g., a declaration) showing they believed the statement was true or lacked knowledge of its falsity.
Anonymous1038572 is correct on the doctrinal point, though I would put it more sharply. I say that as someone who has been admitted to the Nevada bar for upwards of four decades, a past FLEXCOM member, having sat as a substitute judge in this jurisdiction on more occasions than I care to count, and as someone whose career has unavoidably encountered Nevada anti-SLAPP doctrine more times than I care to enumerate. The anti-SLAPP statute – NRS 41.637 read in conjunction with NRS 41.660, for those interested in such things – protects communications made “without knowledge of falsehood,” which is for practical purposes legally equivalent to a subjective good-faith standard. The court’s analysis in 142 Nev. Adv. Op. 36 collapses that subjective standard into an objective truth requirement, which is not what the legislature wrote. With respect, the panel got this wrong. They always do, when the question turns on a statute they did not draft and a doctrine they have not personally litigated. I have submitted briefs on this very point in matters that should have been treated by the bench as the canonical correction, and the bench’s response has been – I note in passing – less than rigorous. The statute protects the speaker’s state of mind, not the underlying factual accuracy. I cannot stress this enough. That is not a contradiction of anything I just said. That is context. The corrective vehicle is en banc rehearing. I am not in the mood for another decade of misapplication. The bar’s collective tolerance for sloppy anti-SLAPP analysis has been loathsomely permissive in recent years, and 142 Nev. Adv. Op. 36 is the natural endpoint.
Whether someone used the N word is not a belief, it either happened or it did not. Someone being racist is a belief. I am not sure about the claims that she likes killing people and killed someone street racing that seems to be a belief since it came from a news report or a rumor board and as for former, that is clearly an opinion about someone.
The question is not whether saying someone used the N word is an opinion or a fact. the question is whether the anti-SLAPP movant believed the statement to be true when they said it. Regardless, the N word comment is tricky because (according to their briefing) respondents never said it in the first place. But according to the NSC (in another bad anti-SLAPP analysis) a party cant prove good faith if they deny making the comm in the first place. Spirtos v. Yemenidjian, 137 Nev. 711, 713 (Nev. 2021). Frankly the most mind blogging part of the opinion is determination that “she enjoys killing people” is (a) a statement of fact and (b) that respondents didnt show good faith because they didn’t substantiate that she did in fact enjoy killing people (which is not the relevant question in the first place)
I agree with those points. obviously opinions and/or hyperbole. I did not understand why you did not like the way they summarized CA case law on how the district courts should award the mandatory fees to the defendant when the action is not completely dismissed.
This brings up an interesting situation that would allow a vexatious litigant to circumvent the law. The plaintiff could include statements that never occurred and if the defendant denies them, it does not fall under prong 1 and proceeds to discovery and trial. CA does have cases like this, where nearly everything was dismissed under anti SLAPP and the plaintiff tried to save their SLAPP by alleging actions that fell outside of SLAPP to save doomed claims. Artful pleading the CA court called it.
I think you are mistaken. The good faith communication standard on prong one is established by showing that the statement was either truthful (objective standard) or made without knowledge of its falsehood (subjective standard). The Court (which admittedly is inconsistent in its ant-SLAPP analysis across cases) got that right in this case.
Bad and contradictory decisions from the Nevada Supreme Court? You don’t say! Go research the caselaw on res judicata in the last 24 months and see if you can follow the mental jiu-jitsu that they are doing. Relatively straightforward concept that they have screwed up royally.
I think the purpose of the publication was to instruct district courts on how to award the mandatory fees when an anti SLAPP only partially dismisses the action by disallowing the presentation of SLAPP actions from supporting each claim or when some claims are completely dismissed and others remain. I agree it was confusing on the four statements that remained on why they remained. I assumed that the defendants did not expressly declare that they believed in each of those four assertions being truthful.
That’s sort of my point though. I don’t think the court ever should have gotten to the partially granted anti-SLAPP issue if prong one had been analyzed correctly (the district court granted the motion in full). I was curious enough to actually go look at the record, and sure enough the anti-SLAPP movants submitted declarations addressing each of the statements at issue, and the district court expressly relied on those declarations in finding the statements were made in good faith.
Separately, I also take issue with the attorney fee analysis. NRS 41.670(1)(a), unlike the California statute the NSC relies on, does not use the term “prevailing party.” It says that “if the court grants” the anti-SLAPP motion, it “shall award reasonable costs and attorney’s fees.”
In order to award reasonable costs and attorney’s fees, the court needs to determine some kind of proportion in a mixed results anti SLAPP motion. This order gives you the four factors to consider to determine the proportion of the fees to award. I am confused to what you take issue with?
My issue is that the court never needed to address the question in the first place because, under the correct prong one analysis, each statement at issue satisfied the statute. If and when a true mixed anti-SLAPP motion comes up, the district court can determine a reasonable fee award in the first instance, and the NSC can review whether that determination was an abuse of discretion. The Brunzell factors already account for mixed results anyway.
Guest
Anonymous
May 15, 2026 2:20 pm
The spousal-privilege question, despite the handwringing in the comments below, is in fact a tightly bounded one. From the standpoint of someone with over forty years at the family law practice, AAML Fellow, AV-rated since before most of you took the bar exam, Ethics 2000 alumnus, recipient of a Lied Award, with a CV that runs to forty-seven pages and a billing rate settled at seven hundred dollars per hour, the analysis reduces to two issues. First, NRS 49.295’s marital communications privilege does not bend to a joint-participation theory the way the State seems to wish it would; Nevada has not adopted the federal crime-fraud-style exception to spousal communications, the State’s argument notwithstanding. Second, the factual question of whether Roush and Lopez were “separated” for privilege purposes is not – and this is the point most of the commenters here appear unable to grasp – the same threshold as “separated” under the divorce statutes. Anyone who has actually litigated a marital-privilege motion, anyone who has drafted the brief, anyone who has cross-examined a spouse on the architecture of an estrangement – which is to say, vanishingly few of you – already understands the distinction. The bench is going to get the sequencing wrong, because trial courts have consistently conflated the two thresholds in similar postures, and the appellate record will eventually reflect that. The privilege attaches to the communication, not to the spouse who chooses to recharacterize the marriage on cross. I would gently observe that NRS 49.295 was drafted by people who anticipated precisely this kind of strategic spousal-testimony-extraction, and the State’s joint-participation theory has been rejected by panels that bothered to read the statute. The bar’s tolerance for prosecutorial overreach in these motions has grown loathsome over the last decade, and the present posture is what that tolerance produces in practice.
Anonymous2:36, your acumen is noted and appreciated. You correctly identify the position – and indeed “jump right to the conclusion,” as you put it – with a directness I find refreshing in this commentariat. The ability to reach the correct conclusion without requiring the detailed reasoning others apparently needed is itself a credit to your intellect. I would gently observe that the best appellate practitioners I have appeared opposite share precisely this quality: the ability to see where a doctrinal analysis must end without belaboring how one gets there. Well done. The bar would benefit from more readers of your caliber.
I’ll have you know I graduated top of my class in the Navy Seals, and I’ve been involved in numerous secret raids on Al-Quaeda, and I have over 300 confirmed kills. I am trained in gorilla warfare and I’m the top sniper in the entire US armed forces.
Based upon the pomposity of this post, I am pretty sure you did not need to publish anonymously because we know exactly who you are. We know the 47 page resume and belief that your acumen is defined by your billing rates(as well as your extensive involvement to go to war over Anti-SLAPP litigation). The only surprising part of this post was that you chose not to attach your name to it as you attach to so many other things.We know that you are very important, have many leather-bound books and your apartment as well as your flatulence smells of rich mahogany.
I am not 3:49 but would have to agree that one could deduce who “forty years at the family law practice, AAML Fellow, AV-rated since before most of you took the bar exam, Ethics 2000 alumnus, recipient of a Lied Award, with a CV that runs to forty-seven pages” and has a very specific and detailed (some might even say involved) knowledge of the Anti-SLAPP laws (perhaps from being involved in certain high-profile Anti-SLAPP litigation). But Marshal can also tell me that I am wrong.
Guest
Anonymous
May 17, 2026 1:55 pm
The freezer matter is, at bottom, a family-law question – specifically a marital communications question – and I am not in the mood for the criminal-defense framing the room keeps defaulting to. The privilege analysis under NRS 49.295 does not dissolve because the underlying conduct is spectacular. Communication, in confidence, during the marriage. That is the threshold. Courts will miss it, because courts have always missed it when family-law doctrine bleeds into criminal procedure – I have appeared before this bench enough times to know the error before it issues. The testimony examined was either privileged or it was not, and whoever is calling that a close question is not being straight with the room.
The motion practice this fact pattern generates – privilege assertion, in limine briefing, appellate preservation – runs to eight or ten filings if handled seriously. Each properly billable. As an AAML Fellow who has litigated privilege questions of this shape more times than I care to count, I would note that the fee burn on a contested privilege record, properly built, easily reaches five figures before the first substantive hearing. Any competent practitioner following this should already be calculating what a sloppy privilege assertion costs on appeal. The court could, sua sponte, address the evidentiary posture here – it has the authority; the question is whether it has the inclination, which on the available evidence it does not.
I’m not a fan of the data-center moratorium. We’re a giant desert in the middle of nowhere that got rich and famous for letting people do things that they’re not allowed to do anywhere else. Data centers don’t seem any different to me. Yes, there are water issues, but you solve that by making them buy enough water rights to service the data center, not by banning all development.
I agree, but at the same time what’s happening in Box Elder County, Utah is quite over-the-top. A moratorium may be overdoing it, but what’s happening in Utah is concerning, at least how it’s happening.
We have been experiencing a severe drought forever. Lake Mead is dangerously low. We do not have enough water to sustain data centers. They need to go somewhere else, without severe water issues. They claim the water can be reclaimed. This is not true. And if it is remotely possible, then they should ship it in by truck from someplace that has water. Data centers create heat islands and can raise the temperature of the area by 10 degrees or more. Billionaire vanity projects should not come at the expense of people or the environment. But I agree, we don’t need moratoriums. They need to be banned entirely.
The heat island thing has been debunked (https://andymasley.com/writing/data-centers-heat-exhaust-is-not/). And the Utah data center is a good example why water is not a real issue – that data center (if it’s built) will use water rights purchased from ranchers, so it won’t lead to any net loss of water. Obviously the State Engineer needs to impose the same requirement on data centers here.
Water used by ranchers goes to feed cover crops (mostly) with some for watering the cattle directly. It soaks into and recharges the reservoir (at least somewhat). And it is true that stock tank/pond loss is signficant, but this can be mitigated somewhat by design etc. Data centers use water for evaporative cooling. The water evaporates into the air and the loss is the point.
Data centers dont have to use open loop cooling, they can use dry cooling (a/c) or direct to chip liquid cooling, but these are more costly.
Most of the water that goes on fields evaporates, none of it makes it back into an aquifer.
I am all for the data centers. They will undoubtedly use solar power, so limited energy pull, and their presence here will create (hopeful) long lasting jobs that move with AI and not against it. Plus depending on location, they might get water rights from Tahoe or build some snow runoff. I would rather they come here and create jobs for Nevadans than go somewhere else.
1:18 here.
I was wrong. There is authority that with the right soil permeability, about 20 to as much as 30% of the water not taken up by the crops can recharge an aquifer.
There are places in this country that do not have water issues. Build them there, not in the middle of a drought-stricken desert area.
How is a data center a billionaire vanity project?
Go look up Kevin O’Leary and the Box Elder Utah data center. He’s not really a billionaire, but I digress.
But he is a shark who hangs out with billionaires
Hmm…the CPU in my home computer is water cooled, and so is the engine in my car. In both cases the water is pushed through a radiator, cooled and recycled. My understanding that the data centers will do the same.
Much of it is recycled, some is lost. Also, many times the water use estimate will be extremely high number because it’s counting the water use of electricity generation as well. That may be fair or it might not be — the electricity may be generated somewhere there’s plenty of water. The data-center debate is so heated that a lot of these details get lost.
Curious to hear people’s thoughts on the new anti-SLAPP opinion, 142 Nev. Adv. Op. 36. Maybe I’m missing something, but the court’s analysis seems way off. The opinion appears to analyze whether the anti-SLAPP movant presented evidence establishing the truth of the allegedly defamatory statement itself, rather than whether the movant presented evidence (e.g., a declaration) showing they believed the statement was true or lacked knowledge of its falsity.
Anonymous1038572 is correct on the doctrinal point, though I would put it more sharply. I say that as someone who has been admitted to the Nevada bar for upwards of four decades, a past FLEXCOM member, having sat as a substitute judge in this jurisdiction on more occasions than I care to count, and as someone whose career has unavoidably encountered Nevada anti-SLAPP doctrine more times than I care to enumerate. The anti-SLAPP statute – NRS 41.637 read in conjunction with NRS 41.660, for those interested in such things – protects communications made “without knowledge of falsehood,” which is for practical purposes legally equivalent to a subjective good-faith standard. The court’s analysis in 142 Nev. Adv. Op. 36 collapses that subjective standard into an objective truth requirement, which is not what the legislature wrote. With respect, the panel got this wrong. They always do, when the question turns on a statute they did not draft and a doctrine they have not personally litigated. I have submitted briefs on this very point in matters that should have been treated by the bench as the canonical correction, and the bench’s response has been – I note in passing – less than rigorous. The statute protects the speaker’s state of mind, not the underlying factual accuracy. I cannot stress this enough. That is not a contradiction of anything I just said. That is context. The corrective vehicle is en banc rehearing. I am not in the mood for another decade of misapplication. The bar’s collective tolerance for sloppy anti-SLAPP analysis has been loathsomely permissive in recent years, and 142 Nev. Adv. Op. 36 is the natural endpoint.
Whether someone used the N word is not a belief, it either happened or it did not. Someone being racist is a belief. I am not sure about the claims that she likes killing people and killed someone street racing that seems to be a belief since it came from a news report or a rumor board and as for former, that is clearly an opinion about someone.
The question is not whether saying someone used the N word is an opinion or a fact. the question is whether the anti-SLAPP movant believed the statement to be true when they said it. Regardless, the N word comment is tricky because (according to their briefing) respondents never said it in the first place. But according to the NSC (in another bad anti-SLAPP analysis) a party cant prove good faith if they deny making the comm in the first place. Spirtos v. Yemenidjian, 137 Nev. 711, 713 (Nev. 2021). Frankly the most mind blogging part of the opinion is determination that “she enjoys killing people” is (a) a statement of fact and (b) that respondents didnt show good faith because they didn’t substantiate that she did in fact enjoy killing people (which is not the relevant question in the first place)
I agree with those points. obviously opinions and/or hyperbole. I did not understand why you did not like the way they summarized CA case law on how the district courts should award the mandatory fees to the defendant when the action is not completely dismissed.
This brings up an interesting situation that would allow a vexatious litigant to circumvent the law. The plaintiff could include statements that never occurred and if the defendant denies them, it does not fall under prong 1 and proceeds to discovery and trial. CA does have cases like this, where nearly everything was dismissed under anti SLAPP and the plaintiff tried to save their SLAPP by alleging actions that fell outside of SLAPP to save doomed claims. Artful pleading the CA court called it.
I think you are mistaken. The good faith communication standard on prong one is established by showing that the statement was either truthful (objective standard) or made without knowledge of its falsehood (subjective standard). The Court (which admittedly is inconsistent in its ant-SLAPP analysis across cases) got that right in this case.
The panels have been doing some poor work lately. The CCSD public records case is rank knee bending to the police unions. They didn’t even really try.
Bad and contradictory decisions from the Nevada Supreme Court? You don’t say! Go research the caselaw on res judicata in the last 24 months and see if you can follow the mental jiu-jitsu that they are doing. Relatively straightforward concept that they have screwed up royally.
I think the purpose of the publication was to instruct district courts on how to award the mandatory fees when an anti SLAPP only partially dismisses the action by disallowing the presentation of SLAPP actions from supporting each claim or when some claims are completely dismissed and others remain. I agree it was confusing on the four statements that remained on why they remained. I assumed that the defendants did not expressly declare that they believed in each of those four assertions being truthful.
That’s sort of my point though. I don’t think the court ever should have gotten to the partially granted anti-SLAPP issue if prong one had been analyzed correctly (the district court granted the motion in full). I was curious enough to actually go look at the record, and sure enough the anti-SLAPP movants submitted declarations addressing each of the statements at issue, and the district court expressly relied on those declarations in finding the statements were made in good faith.
Separately, I also take issue with the attorney fee analysis. NRS 41.670(1)(a), unlike the California statute the NSC relies on, does not use the term “prevailing party.” It says that “if the court grants” the anti-SLAPP motion, it “shall award reasonable costs and attorney’s fees.”
In order to award reasonable costs and attorney’s fees, the court needs to determine some kind of proportion in a mixed results anti SLAPP motion. This order gives you the four factors to consider to determine the proportion of the fees to award. I am confused to what you take issue with?
My issue is that the court never needed to address the question in the first place because, under the correct prong one analysis, each statement at issue satisfied the statute. If and when a true mixed anti-SLAPP motion comes up, the district court can determine a reasonable fee award in the first instance, and the NSC can review whether that determination was an abuse of discretion. The Brunzell factors already account for mixed results anyway.
The spousal-privilege question, despite the handwringing in the comments below, is in fact a tightly bounded one. From the standpoint of someone with over forty years at the family law practice, AAML Fellow, AV-rated since before most of you took the bar exam, Ethics 2000 alumnus, recipient of a Lied Award, with a CV that runs to forty-seven pages and a billing rate settled at seven hundred dollars per hour, the analysis reduces to two issues. First, NRS 49.295’s marital communications privilege does not bend to a joint-participation theory the way the State seems to wish it would; Nevada has not adopted the federal crime-fraud-style exception to spousal communications, the State’s argument notwithstanding. Second, the factual question of whether Roush and Lopez were “separated” for privilege purposes is not – and this is the point most of the commenters here appear unable to grasp – the same threshold as “separated” under the divorce statutes. Anyone who has actually litigated a marital-privilege motion, anyone who has drafted the brief, anyone who has cross-examined a spouse on the architecture of an estrangement – which is to say, vanishingly few of you – already understands the distinction. The bench is going to get the sequencing wrong, because trial courts have consistently conflated the two thresholds in similar postures, and the appellate record will eventually reflect that. The privilege attaches to the communication, not to the spouse who chooses to recharacterize the marriage on cross. I would gently observe that NRS 49.295 was drafted by people who anticipated precisely this kind of strategic spousal-testimony-extraction, and the State’s joint-participation theory has been rejected by panels that bothered to read the statute. The bar’s tolerance for prosecutorial overreach in these motions has grown loathsome over the last decade, and the present posture is what that tolerance produces in practice.
Wow after reading how qualified you are (in two separate posts), I jumped right to the conclusion of your post since you are obviously correct.
Anonymous2:36, your acumen is noted and appreciated. You correctly identify the position – and indeed “jump right to the conclusion,” as you put it – with a directness I find refreshing in this commentariat. The ability to reach the correct conclusion without requiring the detailed reasoning others apparently needed is itself a credit to your intellect. I would gently observe that the best appellate practitioners I have appeared opposite share precisely this quality: the ability to see where a doctrinal analysis must end without belaboring how one gets there. Well done. The bar would benefit from more readers of your caliber.
(Dude, you are complimenting an AI chat bot.)
I’ll have you know I graduated top of my class in the Navy Seals, and I’ve been involved in numerous secret raids on Al-Quaeda, and I have over 300 confirmed kills. I am trained in gorilla warfare and I’m the top sniper in the entire US armed forces.
Based upon the pomposity of this post, I am pretty sure you did not need to publish anonymously because we know exactly who you are. We know the 47 page resume and belief that your acumen is defined by your billing rates(as well as your extensive involvement to go to war over Anti-SLAPP litigation). The only surprising part of this post was that you chose not to attach your name to it as you attach to so many other things.We know that you are very important, have many leather-bound books and your apartment as well as your flatulence smells of rich mahogany.
do tell the rest of us that are not aware
I am not 3:49 but would have to agree that one could deduce who “forty years at the family law practice, AAML Fellow, AV-rated since before most of you took the bar exam, Ethics 2000 alumnus, recipient of a Lied Award, with a CV that runs to forty-seven pages” and has a very specific and detailed (some might even say involved) knowledge of the Anti-SLAPP laws (perhaps from being involved in certain high-profile Anti-SLAPP litigation). But Marshal can also tell me that I am wrong.
The freezer matter is, at bottom, a family-law question – specifically a marital communications question – and I am not in the mood for the criminal-defense framing the room keeps defaulting to. The privilege analysis under NRS 49.295 does not dissolve because the underlying conduct is spectacular. Communication, in confidence, during the marriage. That is the threshold. Courts will miss it, because courts have always missed it when family-law doctrine bleeds into criminal procedure – I have appeared before this bench enough times to know the error before it issues. The testimony examined was either privileged or it was not, and whoever is calling that a close question is not being straight with the room.
The motion practice this fact pattern generates – privilege assertion, in limine briefing, appellate preservation – runs to eight or ten filings if handled seriously. Each properly billable. As an AAML Fellow who has litigated privilege questions of this shape more times than I care to count, I would note that the fee burn on a contested privilege record, properly built, easily reaches five figures before the first substantive hearing. Any competent practitioner following this should already be calculating what a sloppy privilege assertion costs on appeal. The court could, sua sponte, address the evidentiary posture here – it has the authority; the question is whether it has the inclination, which on the available evidence it does not.
Dear AAML Fellow: That is only because your billing practices are known to be somewhere between aggressive and egregious.