Brian K. Nichols

Direct: 505.848.1852
Main: 505.848.1800
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Fax: 505.848.9710
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Email: brian.nichols@modrall.com

Overview

Brian Nichols' practice is primarily in litigation, with focuses on energy, natural resources and Indian Law. His experience includes labor law, federal compliance including Mine Safety and Health Administration (MSHA), contracts, employment law, personal injury, premises liability and royalty claims. Brian has advised clients including BHP Navajo Coal Company, San Juan Coal Company, 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). 

As a member of the Navajo Nation Bar, Brian consults with businesses doing or considering commerce on the Navajo Nation. He regularly advises clients regarding employment (the Navajo Preference in Employment Act), property (the Navajo Nation Civil Trespass Act), vendor preferences and procurement (the Navajo Business Opportunity Act), and worker health and safety (the Navajo Occupational Safety and Health Act).

As reported in Chambers USA Directories of America's Leading Lawyers for Business, he is well known for his Native American employment law expertise. Brian received national recognition from Chambers USA as "a litigator with strong experience in Native American matters, including those involving natural resources matters and employment law." Sources describe him as a "very bright young lawyer" who brings a "smart and diligent" approach to matters. He handles both contentious and non-contentious matters, and has appeared before the Navajo Labor Commission and Navajo Supreme Court. Brian has an AV® rating in Martindale-Hubbell, he is listed in Best Lawyers in America® in Native American Law and named a Southwest Rising Star by Southwest Super Lawyers®.

Before joining Modrall Sperling, Brian clerked for the Honorable Pamela B. Minzner of the New Mexico Supreme Court and the Honorable Fredrick J. Martone of the U. S. District Court for the District of Arizona.  He serves as Co-Chair of the Native American Law practice group and as a member of the firm's Executive Committee.

Education

  • Georgia State University, J.D., 2003, summa cum laude Editorial Board, Georgia State University Law Review
  • Earlham College, B.A. in Economics, 1993, College and Departmental Honors, Phi Beta Kappa, Charles Stinneford Award for Excellence in Economics

Bar Admissions

  • New Mexico
  • U.S. District Court for the District of New Mexico
  • U.S. Court of Appeals for the Tenth Circuit
  • Arizona
  • Navajo Nation

Practice Areas

Recognition

Experience

Natural Resources and Indian Law

  • In a 2013 unpublished decision of the Navajo Supreme Court, the Court affirmed the decision of the Navajo Labor Commission. The Commission found that BHP Navajo Coal Company had just cause to fire an employee who had undisclosed conflicts of interest. The employee, a Navajo medicine man, contended that his termination was religious discrimination. By contrast, both the Commission and the Supreme Court found that the mine accepted and promoted Navajo culture, and valued the employee's expertise in that area. Brian conducted both the trial and appeal of the case. 

  • 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 reiterated its test for jurisdiction, holding that the Nation may have jurisdiction over a party which no longer has contacts with the Nation. The Court also held that its District Court should determine aspects of the case which, by contract, were to be determined by a Texas court, due to the Nation's interests in real property. Neptune Leasing, Inc. v. Mountain States Petroleum Corp., et al., No. SC-CV-24-10 (Nav. Sup Crt. May 13, 2013).

  • 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

Presentations

  • "Tribal Employment Preference Laws," Tribal Employment Rights & Law, sponsored by Law Seminars International, Washington State Convention Center, Seattle, Washington, July 14, 2014
  • "Indian Tribes & Discrimination Issues," Tribal Employment Rights & Law, sponsored by Law Seminars International, Prior Lake, Minnesota, presentation with Paul W. Spruhan, Assistant Attorney General, Navajo Nation Dept. of Justice, April 28–29, 2014

  • "Indian Tribes & Discrimination Issues," Tribal Employment Rights & Law, sponsored by Law Seminars International,  Cabazon, California, presentation with Keith C. Smith, Smith, Shellenberger & Salazar LLC, Westminster, CO and Paul W. Spruhan, Assistant Attorney General, Navajo Nation Dept. of Justice, Window Rock, AZ, October 28-29, 2013 

Honors

  • Chambers USA Directories of America's Leading Lawyers for Business, recognized Nationwide in Native American Law, 2016; in New Mexico, 2015-present
  • Best Lawyers in America® in Native American Law, 2014 - present
  • Chambers USA Directories of America's Leading Lawyers for Business in Native American Law, 2015
  • Martindale-Hubbell AV® Preeminent, Peer Review Rated
  • Southwest Super Lawyers®, Southwest Rising Star

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