Brian K. Nichols

Experience

Natural Resources and Indian Law

• Ongoing representation with two BHP Billiton subsidiaries, BHP Navajo Coal Company and San Juan Coal Company, in areas of labor law, federal compliance, contracts, employment and Navajo Preference in Employment Act (NPEA).  He has represented these entities in Mine Safety and Health Administration (MSHA) matters, labor negotiations, personal injury matters, employment matters and the priority of coal mining.  He was lead negotiator for San Juan Coal Company in 2011 labor negotiations.

• Defended transportation, gas industry and coal industry clients against personal injury and premise liability claims.

• Represented Vulcan Material Company in a lengthy dispute regarding the amount of royalties due to the Pala Band of Indians in California.

• Represents businesses in the courts and agencies of the Navajo Nation.  Common matters include employment (the Navajo Preference in Employment Act, NPEA); property (such as the Navajo Nation Civil Trespass Act); vendor preferences and procurement (the Navajo Business Opportunity Act, NBOA); and worker health and safety (such as the Navajo Occupational Safety and Health Act, NOSHA).

• Assists businesses doing or considering commerce with the Navajo Nation, providing legal advice about issues such as Dine Fundamental Law, the Nation's policy regarding graves (Jishchaa), compensation to individual Navajos for takings, and property issues. Clients include Sempra Energy, BNSF Railway Company, Peabody Energy, Central Consolidated School District, Chevron USA, El Paso Natural Gas, Nacogdoches Oil & Gas, Siemens IT and Four Corners Giant (Western).

General Litigation

• Participated in the defense of SunCal affiliated entities and Westland Development Co., Inc. in eight lawsuits related to a corporate merger. The claims included: insider trading (10b-5 claims), proxy misrepresentation (14a claims), breach of fiduciary duty, appraisal under the dissenting shareholder statute and the registration of shares under Article VIII of the Uniform Commercial Code.  

• Defended several lawsuits involving fatal and other serious accidents. Clients include BNSF Railway Company, Amtrak, TA Operating, LLC (Petro Shopping Center) and BHP Billiton subsidiaries. Allegations in such cases include tire failure (product liability) and negligence resulting in railway crossing accidents, vehicle accidents or other injuries.  

• Represented governmental entities in civil rights cases (Section 1983) and construction disputes.

Published Decisions & Representative Cases

• The Navajo Supreme Court determined that the Nation's tribal courts must determine jurisdiction over non-Indians at the outset of a case. The court must make factual findings to determine whether it has jurisdiction under both Navajo Law and Federal Law. Doe BF vs. Diocese of Gallup, No. SC-CV-06-10 (Nav. Sup. Crt. Sept. 9, 2011).

• Defended Albuquerque Public Schools in a civil rights claim related to special education.  The Court of Appeals determined that educators did not violate a student's constitutional rights by placing him in a "time-out room" in response to his dangerous, disruptive behavior. See Couture v. Albuquerque Public Schools, 535 F.3d 1243 (10th Cir. 2008).

• Represented Westland Development Co., Inc. and SunCal affiliated entities in federal securities law claims.  In two orders, the District Court dismissed in part a proxy claim (14a claim).  Previously, the Court denied injunctive relief to the Plaintiff, effectively allowing a corporate merger.  See Lane v. Page, 581 F. Supp. 2d 1094 (D. N.M. 2008) & 649 F. Supp.2d 1256 (D. N.M. 2009).

• Represented Westland Development Co., Inc. in litigation related to a proposed merger.  The District Court had dismissed the plaintiff's claims, holding in part that the appraisal claim created by the dissenting shareholder statute was her exclusive remedy. The Court of Appeals reversed.  See Rael v. Page, 147 N.M. 306, 222 P.3d 678.

• Represented Bank of New York/Mellon and Westland Development Co., Inc. against claims of fraud and breach of fiduciary duty.  In a dispute regarding ownership of Westland's shares, the Court of Appeals affirmed dismissal in part because the claims were time barred, and in part because Westland complied with Article VIII of the Uniform Commercial Code regarding securities.  See, Saavedra Wilde v. Westland Development Co., Inc, 148 N.M. 627, 241 P.3d 628. 

Activities

• American Bar Association, Native American Resource Committee
• Navajo Bar Association, Rules Committee
• Equal Access to Justice, Board of Directors
• Planned Parenthood of New Mexico, Board of Directors
• Pro Bono Legal Representation for members of the Navajo Nation

Discourse

Articles

• Tribal Employment Laws: Legal and Cultural Considerations, USLaw Magazine, Spring/Summer 2013. Outlined here are typical employment issues that businesses should consider before proceeding with a project, employment practices commonly implemented during a project, and if an employer is sued in tribal court.
• Tribal Employment Preferences and Employee Protection Laws
• Indian Country: Courts Split on Test and Outcome
• Navajo Nation Labor Commission Rules it Lacks Jurisdiction
• FLSA Applies to Business Located on Tribal Land
• Statutes of Limitation in 1983 Claims
• New Mexico Court of Appeals Clarifies the Circumstances Under Which an Insurer is Subrogated

Honors

• Martindale-Hubbell AV® Preeminent, Peer Review Rated
• Southwest Rising Star, Southwest Super Lawyers®, 2012