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October 30, 2014

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Crusading eminent domain lawyer a man of the people

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Steve Marcus

Eminent domain lawyer Kermitt Waters fights government efforts to take private land and strongly promotes the process of citizen ballot initiatives to “protect the people.”

The cell phone won’t stop ringing. It is election season, after all, and it seems as if everybody from every party wants a piece of Kermitt Waters.

It’s his money, his seemingly random, unorthodox ideas, and his willingness to act on those ideas that make the 75-year-old eminent domain lawyer one of the most desired and feared players in Nevada politics. But he won’t run for office, he says. Instead, he would rather shake up the system from the outside.

Since he started his private law practice in Las Vegas in 1972, he’s gotten pretty good at agitating.

“It’s like the inmates are running the asylum,” Waters says of Nevada’s government. “We need to get people in there who are not there to get rich and help themselves.”

If Waters had his way, average Nevadans would flood the Legislature with ballot initiatives, green energy would take a strong foothold across the country, and gaming and mining — Nevada’s largest lobbying groups — would be taxed at 20 percent to help rescue the financially foundering state.

“Kermitt is a classic Nevadan who holds libertarian and progressive values in the same hand,” says Bob Fulkerson, director of the Progressive Leadership Alliance of Nevada. “Nobody is a more fierce protector of the initiative process than Kermitt. He is absolutely sickened at what foreign mining corporations are doing to our state by leaving a legacy of toxic dumps while taking Nevada gold to Canada and South Africa.”

Waters says his years as a lawyer taught him to trust those without special interests: common men and women. As folksy as it may sound, Waters believes eight to 12 everyday people have more collective wisdom than any group of politicians.

“(Politicians) are afraid of him because they can’t buy him,” says Don Chairez, Waters’ good friend and a district attorney candidate. “They’re afraid he’s going to stop business as usual.”

Going into battle

Waters made himself rich as an eminent domain attorney fighting government’s efforts to take private land. He has brought that same energy and skepticism of power to the political arena, launching ballot initiatives that he says have been about devolving power from the few to the many.

“It’s one thing to be pissed about it,” Waters says in his Texas drawl. “I’m doing something about it.”

Fighting is Waters’ way of life. Why settle? There’s much to be done, he says.

So although Waters could be relaxing at his homes in Henderson or Florida or the ranch he grew up on in west Texas, flying his small airplanes or working on his oil rig, he is instead relentlessly pursuing the “greater good,” as he sees it.

And instead of buying expensive “monkey” suits (as he calls business suits) or watches, the native of Childress, Texas, dons bluejeans and his Timex every morning after sometimes running stairs at Sunset Station.

He has millions of dollars, but he would really rather not talk about it.

“You’re making me sound wealthy,” he says, shaking his head and bashfully looking away. “But I don’t think that way.”

West Texas roots

Waters left home when he was 17 to attend the University of Colorado in Boulder. He left, he says, to get “the hell out of Texas.”

But he didn’t leave for long. He was back at Texas Southern University law school a few years later. He now owns his parents’ ranch where he learned to fly as a teenager.

When asked who influenced him, Waters comes up with only one person: his dad. That’s Kermit Waters, with one “t.”

For a time, Waters’ father was sheriff of Childress and his parents operated gas stations. The father, a physically imposing man, didn’t carry a gun. Because of his girth and his mild manner, he didn’t need to, Waters says. He earned respect.

Waters’ father would always put his neck out for the little guys. In 1930s west Texas, that meant helping poor blacks.

That was a lesson that stuck with Waters: Do good when you can, no matter what people think.

Two days after the Deepwater Horizon exploded, spewing oil into the Gulf of Mexico, Waters was on a plane to China to buy as much oil-absorbing boom as possible to sell to BP. He returned with 1.5 million-square-feet of the fibrous material designed to sop up oil without soaking up water. Waters says he didn’t make a dime on the transaction.

Trips to China and other Asian countries aren’t unusual for Waters. During the 1980s, he spent eight years between Las Vegas and Indonesia, where he panned for gold and learned the native culture.

He moved to Asia because he was bored and young, he says — ripe for change.

Somewhere between college and opening his law firm, Waters says he took a couple of years off to join the military; he learned to fly helicopters in the Army. He had been in the reserves since he was 18, and when an opening came up to pilot helicopters and enter flight school, he took it, he says.

Hitting the tail-end of the war, he was never sent to Vietnam. The move to Asia came later, he says. “Asia is my backyard.”

Waters is a contradiction when it comes to green energy. He airs public service announcements about coal and favors building wind and solar farms in Las Vegas. But he also owns an oil rig in the Bahamas. He’s a wildcatter, and has several employees on his rig.

The real dream isn’t the rig, though. Waters hopes to build a wind farm in the Bahamas with the money he makes from the oil he’ll inevitably strike — which he hopes will inspire others to embrace green energy. He’s also working with engineers to develop a system using underwater currents to harness energy.

He says he doesn’t know how to plan small. He got his start in Nevada when he met former Attorney General Harvey Dickerson, by chance, at the Carson Nugget. It was 1967.

Waters was fresh out of TSU’s law school, known today as the Thurgood Marshall School of Law. He says he was a hot commodity because he had worked in eminent domain at a firm in southeast Texas during school.

Eminent domain is a realm of law few try — and even fewer master, Waters says.

Dickerson and Waters started talking over lunch. When the attorney general heard of Waters’ experience in eminent domain, he hired him on the spot to be a deputy attorney general.

Politics vs. consumers

By 1972, Waters says he was working as an assistant city attorney for Las Vegas. The council members, he says, weren’t his biggest fans.

That year, Nevada’s gas and phone companies tried to raise their rates. Both times, Waters says, he beat them down, using expert witnesses and paying about $40,000 on each case to convince the Public Service Commission of Nevada the rate increases were unnecessary.

The gas company rate proposal came first.

Waters says he went to his boss, Las Vegas City Attorney Earl Gripentrog, and said, “these blankety-blanks don’t need this, it’s crap.”

The details are a little fuzzy, he says, but that’s how he remembers it going down.

“Can you get the city to let me intervene?” he asked Gripentrog.

Gripentrog, Waters says, had his doubts, but let him do it.

“I’m too dumb not to know what I can’t do,” Waters says, smirking.

Waters won. The mayor and council were not pleased.

Then came the phone company. This time, Waters says, city officials were even more unhappy. Waters says the council allowed him to fight the rate increase, but wouldn’t give him any money to do so.

Knowing he needed the money for expert witnesses, Waters called Herbert Jones, head of the Nevada Resort Association. Hotels had to be concerned about the increases, he says, because they had high utility bills.

Waters says that, without hesitation, Jones gave him $45,000. Waters won his case, again.

The council was angry because the special interests of the phone and gas companies were angry, Waters says.

That’s when he knew it was time to get out of public law.

“The problem I had working for government is I thought you were supposed to earn your living,” he says. “I don’t fit well with the government because I feel like I should work for the people. Sometimes, that’s inconsistent with policy.”

During that time, Waters was an active member of the Consumers League in Nevada. During the 1970s, the group helped repeal a tax on food in the state.

Fighting City Hall

Waters represented the Pappas family in the 1990s when Las Vegas tried to buy its land to build a downtown parking garage. The U.S. Supreme Court wouldn’t hear the case, and other courts had ruled against the family, Waters says. That’s when he stepped in to help get it as much money as possible from the city.

The family was paid $4.5 million in 1996 for the parcel on Las Vegas Boulevard — 13 times what the city had originally offered. That sum came to the family, in part, because of Waters’ involvement, says Harry Pappas, one of the sons involved in the lawsuit.

“Many lawyers would do it their way, and tough if you don’t like it,” Pappas says. “He’s a common guy. He doesn’t turn his nose up at you.”

Jan Jones, mayor of Las Vegas during the Pappas case, speaks highly of Waters although they disagreed. She respects him as a lawyer and a good-hearted person.

“He’s passionate, he’s dogged,” she says. “I don’t think anyone is more powerful in their representation of a client.”

But, she says, Waters is sometimes just blowing hot air.

“Taxing gaming at 20 percent would take the industry,” says Jones, now senior vice president of communications and government relations at Harrah’s Entertainment. “I don’t know if he’s really thought about it.”

Jones says she isn’t sure how much of what Waters says is “belief, or how much of it is rhetoric.”

Waters says it’s not rhetoric. He says the casinos should pay.

Waters takes care of his friends, and often remains cordial with adversaries. Chairez says most people don’t know Waters is like a grown-up Opie from “The Andy Griffith Show” of the 1960s. He describes his friend as a Texan alpha male who is also a big, sentimental softy.

Waters has two daughters, Liberty, 38, and Autumn, 34. Autumn works in Waters’ firm as an eminent domain lawyer. Liberty, who lives in Seattle with her husband and two children, is an environmental lawyer. Although Waters is separated from his wife, Jan, the mother of his children, he says he remains close to her.

“Kermitt has an amazing love for life,” says Autumn Waters, who shares her dad’s startlingly bright blue eyes. “When he sees something that’s wrong, he tries to fix it. He’s always been that way.”

Waters is working to win a lawsuit in the 9th U.S. Circuit Court of Appeals that would repeal the “single-subject” rule that keeps many initiatives from passing the Nevada Legislature, he says.

The single-subject rule means that any initiative or bill going through the Legislature must only encompass one subject. For example, a bill about health care can’t include a portion about auto emissions.

UNR political scientist Eric Herzik said the single-subject rule doesn’t necessarily hold the same romanticism it did when it was introduced in 1910s and 1920s. Where once stood groups of like-minded citizens, today stand lobbyist and special-interest groups, he says.

“The cynical political science way of looking at it is that the initiative shows that the average citizen can screw up the legislative process as much as the professional politician,” Herzik says. “It can be good or bad. It depends on your perspective.”

Petition initiatives

Waters was galvanized to initiate eminent domain reform in Nevada because of an East Coast case. New London, Conn., condemned Susette Kelo’s waterfront property so that it could give it to a private developer. The home was not in poor condition — the city just wanted it.

“I just went ballistic,” Waters said.

It was two or three days after the U.S. Supreme Court’s decision in Kelo v. City of New London in favor of the city that Chairez introduced Waters to the initiative petition process. That was when everything changed, Chairez says.

One of the justices had written that the decision was meant to affect federal law, but that the states were free to give more rights to landowners if they wanted to.

Waters and Chairez knew this was their chance. In 2006, Waters and Chairez, who was then the Republican candidate for Nevada attorney general, drafted PISTOL — the People’s Initiative to Stop the Taking of Our Land. PISTOL was approved by voters and added eminent domain rules to the state constitution that protected landowners and made it more difficult for governments to take land.

PISTOL is “going to stop government from financing public projects on the backs of landowners,” Waters told the Sun in 2006. “It is intended to protect the people, the politically and economically weak people who can’t fight back. This will keep the rich from robbing the poor.”

Waters, Chairez and former Clark County Commissioner Bruce Woodbury have been working since 2007 on amending PISTOL. The amendments are on the November ballot (Question 4), this time with a couple of changes requested by Woodbury and his colleagues. The changes include a clause that would give developers 15 years to begin work on an acquired property, instead of five. In this economy, some argued five years was unrealistic, Waters says.

Waters says 95 percent of the initiative is still there — all the important, core parts.

“When the government cheats people, they come to me,” he says. “They don’t abuse people nearly as much as they used to … That whole downtown was a zoo. They just took people’s property.”

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  1. Waters philosophy seems like a dichotomy, to me. How can he be "libertarian" and "progressive" at the same time? Libertarians want people to be as free as possible from the oppressive yoke of government while "progressives" look to stifle initiative at every level with rules, regulations and bureaucratic governmental agencies. "Progressives" are really socialists at heart and want to control how we think, what we eat, what we say, and how we live. They believe in the "collective" over all else while libertarians believe in the individual. Personally, I reject that philosophy while I embrace the Libertarian viewpoint.

  2. eminent domain abuse has to stop. Today it is abused to enrich wealthy individuals - many times at the expense of low-income minorities.

  3. Lvfacts101, truly no dichotomy exists . . . when one understands the essence of what it is to be a Classic Liberal. The Democrats and Republicans both represent big government, but while doing so the former places heavy regulation on business and the latter restrictions on the people. The Classic Liberal represents limited government with only limited regulation on business and no restrictions on the people. One more point, the Classic Liberal, adopted the Libertarian label due to the fact the Progressive movement "adopted" the Liberal Label in this country (but not in Europe) during the post Civil War era of this country.

  4. Kermit IS a pretty bright guy:

    "If Waters had his way, average Nevadans would flood the Legislature with ballot initiatives, green energy would take a strong foothold across the country, and gaming and mining -- Nevada's largest lobbying groups -- would be taxed at 20 percent to help rescue the financially foundering state."

    For the life of me, I cannot fathom why Nevadans let Gaming, and ESPECIALLY MINING, rape their land and reap their profits and ABSCOND WITH THE DOUGH to parts unknown... it is MYSTIFYING.
    "It's a TAX. And we're Anti-Tax."
    It's called "Biting Off Your Nose To Spite Your Face, and it is remarkably shortsighted and ignorant.

  5. Gmag,

    Why the over the top comments? Rape? Give me a break.

    If it wasn't for mining and gaming Nevada's unemployment and poverty would be much, much, much higher in this state. Besides, gaming pays a gross receipts tax - which is a disgusting tax that takes money from businesses regardless of whether or not they make a profit.

  6. lemahj: You're right. That's why I did not write "Liberal" but "Progressive." They not only co-opted the term "Liberal," they did the same with "Progressive" because they know American's in general shun "Socialism" and abhore "Communism" both of which are more in line with the "Progessives" true agenda. So not wanting to be exposed, "Progessives" did what "Progressives" do. They fudge, they misdirect, they obfuscate & they lie.