                   value of comparable parcels. Statements made at various times by the
                   NTC suggest that the regulation may or may not have been intended to
                   operate retroactively, but its later decision in this case suggests that the
                   NTC did not intend retroactive application.
                               The parcel at issue, which is owned by respondent LB
                   Properties, Inc., was divided from a larger piece of land prior to the
                   regulation's enactment. The parties do not dispute that the land is a
                   "remainder parcel." Appellant, the Clark County Assessor, valued the
                   land under the multi-factored formula in use before the enactment of NAC
                   361.61038. Seeking application of the new formula, LB appealed to the
                   NTC, which assigned an administrative law judge to the case. The
                   administrative law judge decided that NAC 361.61038 should apply, but
                   thereafter the NTC disagreed based on its position that the regulation did
                   not apply retroactively. LB petitioned for judicial review and the district
                   court ordered the NTC to follow the administrative law judge's decision.
                               On appeal to this court, the parties primarily dispute whether
                   NAC 361.61038 applies retroactively and, if so, whether it conflicts with
                   Nevada's Constitution and is void. Because the regulation does not apply
                   retroactively, this court need not reach the challenge to its
                   constitutionality.
                               Regulations generally only operate prospectively "unless an
                   intent to apply them retroactively is clearly manifested."       State ex rel.
                   State Bd. of Equalization v. Barta, 124 Nev. 612, 622, 188 P.3d 1092, 1099
                   (2008). However, there are two types of regulations: legislative and
                   interpretive.   Fmali Herb, Inc. v. Heckler, 715 F.2d 1385, 1387 (9th Cir.
                   1983). Whereas legislative regulations implement statutory mandates,
                   interpretative regulations simply interpret the statute.   Id. If a regulation

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                is a first-time interpretive regulation, application to pre-existing issues
                may be permissible.     Smiley v. Citibank (South Dakota), N.A.,    517 U.S.
                735, 744, n.3 (1996). For example, in Smiley the Supreme Court approved
                application of an interpretive regulation that clarified an ambiguity the
                Legislature left for the agency to resolve, namely the definition of
                "interest."   Smiley, 517 U.S. at 740-41.    But see Pauly v. U.S. Dep't of
                Agric., 348 F.3d 1143, 1152 (9th Cir. 2003) (holding that first-time
                interpretive regulations are not generally retroactive, but where the new
                regulation is an explicit break from prior practice or the agency has
                expressly stated application would be impermissibly retroactive, it may
                not be retroactively applied). Therefore, unlike legislative regulations,
                interpretive regulations construe, but do not expand upon, the terms of a
                statute.
                              Legislative regulations differ from interpretive regulations in
                that they are adopted under power delegated by the Legislature to the
                agency and establish substantive rules that create standards of conduct
                and impose new rights or duties; they do not generally apply retroactively.
                See, e.g., Jerri's Ceramic Arts, Inc., v. Consumer Prod. Safety Comm'n, 874
                F.2d 205, 207 (4th Cir. 1989) ("a substantive or legislative rule, pursuant
                to properly delegated authority, has the force of law, and creates new law
                or imposes new rights or duties."); Slippery Rock Area Sch. Dist. v.
                Unemployment Comp. Bd. of Review,        983 A.2d 1231, 1236 (Pa. Ct. App.
                2009) ("a legislative regulation establishes 'a substantive rule creating a
                controlling standard of conduct"); see generally Bowen v. Georgetown
                Univ. Hosp., 488 U.S. 204, 208 (1988) ("Retroactivity is not favored in the
                law. Thus, congressional enactments and administrative rules will not be



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                construed to have retroactive effect unless their language requires this
                result.").
                               Here, NAC 361.61038 was promulgated pursuant to the
                express direction of NRS 361.4722(5). It is, as LB concedes, a substantive
                rule that establishes a standard of conduct. Specifically, it establishes a
                method of assessing and valuing properties; it does not merely construe
                the meaning of the statute. Thus, NAC 361.61038 is legislative, not
                interpretive, and does not apply retroactively. Also, NAC 361.61038
                represents an explicit break from the prior valuation method, as the prior
                method considered additional factors such as land size and shape and
                looked at the separate value of the individual piece, whereas NAC
                361.61038 focuses on the remainder parcel's contribution to the value of
                the larger parcel. Moreover, NAC 361.61038 does not specifically provide
                for retroactive application, the NTC made inconsistent statements
                regarding retroactive application when promulgating the regulation, and
                the NTC later ruled against retroactive application in the underlying case.
                The district court therefore erred by ordering the NTC to follow the
                administrative law judge's decision and value the land according to the
                apportionment formula set forth in the regulation. Because NAC
                361.61038 was enacted in 2007 and the valuation at issue occurred prior
                to that time, application of the regulation would be impermissibly
                retroactive.
                               In the absence of an applicable regulatory method of
                assessment, the question then becomes whether the method the assessor
                used was proper or whether it was itself in violation of Nevada law.
                               LB Properties argues that the assessor's use of the pre-2007
                method violated the holdings in Barta and State ex rel. State Board of

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                Equalization v. Bakst, 122 Nev. 1403, 148 P.3d 717 (2006), because the
                assessor's method was an "ad hoc standard" rather than a method
                formally promulgated by the agency. The district court determined,
                without analysis, that the assessor's method of calculation was in violation
                of Bakst. We disagree, because the pre-2007 method does not inherently
                lend itself to inconsistent application.
                            Bakst and Barta dealt with the County Assessor's authority
                under NRS 361.260 to substantially deviate from statutorily-mandated
                methods of assessing land.     See Bakst, 122 Nev. at 1414-15, 148 P.3d at
                725; Barta, 124 Nev. at 620-21, 188 P.3d at 1098. In Bakst, the assessor
                used a unique method to adjust property values—one not consistent with
                others used throughout the state. 122 Nev. at 1406, 1411, 1414, 1416, 148
                P.3d at 719, 722-23, 725-26. In deeming the assessor's methods
                unconstitutional, this court held that our Constitution requires "that the
                methods used for assessing taxes throughout the state must be uniform."
                Id. at 1413, 148 P.3d at 724 (internal quotations omitted). See also Barta,
                124 Nev. at 624, 188 P.3d at 1100 (citing Bakst and stating that "methods
                used to value taxpayers' properties play a material role in ensuring that
                the constitutional guarantee of a uniform and equal rate of assessment"
                exist in property valuations). But Bakst and Barta also recognize that the
                wide and varied differences in each property make it impossible to devise
                an absolute formula to determine value.        Bakst, 122 Nev. at 1412, 148
                P.3d at 723; see also Barta 124 Nev. at 622, 188 P.3d at 1099 (upholding
                Bakst generally). Moreover, NRS 361.228(3) encourages consideration of
                property attributes "such as zoning, location, water rights, view and
                geographic features" in valuing a property, suggesting that valuations
                should account for all relevant attributes—perhaps even where

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                     consideration of a particular attribute is not codified by statute or
                     regulation.
                                   In contrast to Bakst and Barta, the record here supports the
                     conclusion that the assessor's method did not lead to unequal taxation—to
                     the contrary, both the administrative law judge and the NTC recognized
                     that it likely led to more equitable taxation than did the method set forth
                     in NAC 361.61038. Indeed, the assessor's method appears to be the one
                     generally used prior to the regulation's enactment. Neither Bakst nor
                     Barta states that only formal regulations may be used to assess value.
                     Since the assessor's approach did not conflict with existing statute or
                     practice, we therefore conclude that the assessor's methods did not violate
                     the Constitution.
                                   For these reasons, we
                                   ORDER the judgment of the district court REVERSED.




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                1111c3fc
                cc:   Chief Judge, The First Judicial District Court
                      Hon. Robert E. Rose, Senior Justice
                      James Georgeson, Settlement Judge
                      Attorney General/Carson City
                      Clark County District Attorney/Civil Division
                      Frazer Ryan Goldberg & Arnold LLP
                      Lionel Sawyer & Collins/Reno
                      Carson City Clerk




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