Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of Las Vegas

Opinion by Judge HUG; Dissent by Judge BRUNETTI.

The question we are presented with in this appeal is whether a sidewalk constructed on private property to replace a public sidewalk, accommodating pedestrian traffic adjacent to Las Vegas Boulevard, is a public forum subject to the protections of the First Amendment. The Venetian Resort Casino sued Clark County, the Clark County District Attorney, and the Las Vegas Metropolitan Police Department (collectively, “the County”), seeking a declaratory judgment that the replacement sidewalk constructed on its property is not a public forum and an injunction requiring the County to recognize and enforce the Venetian’s right to exclude labor union demonstrators from the sidewalk. The district court denied the Venetian’s request for an injunction and granted summary judgment in favor of the County and intervenors, the Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local No. 226, and Bartenders Union, Local No. 165 (collectively, “the Unions”), and the ACLU of Nevada. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Venetian Casino Resort is a large hotel and…

dissenting:

To fully understand the nature of the property in dispute here, it is necessary to scrutinize more closely the history of the Venetian Casino construction and, more specifically and significantly, to compare the two agreements entered into by the Venetian, first with Clark County and then with the State of Nevada.

The undisputed facts are as follows: Venetian owns a large block of property in Las Vegas. This property has always been in private hands. In 1997, Venetian obtained approval to demolish the hotel formerly sitting on the property and to construct a new hotel. The new hotel’s frontage and main entrance face Las Vegas Boulevard.

In February 1997, Venetian entered into negotiations with Clark County and eventually reached a pre-development agreement. The 1997 Agreement contemplated that Venetian would construct certain improvements to alleviate the new hotel’s anticipated impact on traffic, and would convey property rights to the County or State if “required to construct the IMPROVEMENTS,” including any “public rights-of-way” that might be “needed for [those] systems.” Venetian agreed that “[a]ny conveyance of land” to “the COUNTY or to the State of Nevada,…