If mining wins again it’ll be Sisolak’s fault

Here comes the Guv
Gov. Steve Sisolak prior to a remarks delivered on YouTube earlier this year.

The Nevada Legislature meets in eight weeks. Everyone who expects the 2021 session to be productive raise their hands.

Seeing no hands…

Ha just kidding. 

Probably. 

Sure, Democrats don’t have a two-thirds majority in either house. In fact there are less of them now than there were in the last session, when Democrats at least had a supermajority in the Assembly. Already sliced & diced state government – and state government services — will be sliced and diced again, because raising revenue takes a two-thirds vote in both houses.

The only way to offset yet more cuts to public services will be if Republicans go along with new revenue. Any tax increase Republicans will go along with, assuming they would go along with any at all, will be a) negligible, and b) acquiesced to only in exchange for, oh, gutting every labor law in Nevada statutes, channelling a big swath of the education budget to churches, and/or scratching off other items on the GOP bucket list.

So high hopes, eh, not so much.

Some people will have them — high hopes, that is. Some people do, whenever Nevada lawmakers, all temp-worker like, gather every other year to attend camp in Carson City.

And why not a little optimism? Democrats don’t need a two-thirds majority to accelerate the measly minimum wage increases they enacted in 2019. 

Nor do they need supermajorities to enact the justice reforms the Legislature’s prosecutors caucus killed last time. 

Nevada is one of the most landlord-friendly, which is to say tenant-hostile, states in the nation, and it doesn’t take two thirds of lawmakers in both houses to fix that.

There are a lot of things the Legislature can still do, even if all the Republicans just say nyet.

But the Legislature could have done all those things in the 2019 Legislature, too. And they failed. 

Now, for a lot of reasons, not least being a very good possibility (if not a probability) of an electoral bloodbath for Democrats nationwide in 2022, Democratic lawmakers can be expected to parachute into the state capital with tails between legs, afraid to do anything that might allow Republicans to call them mean names.

That is not some bold prediction, by the way. Nevada legislative Democrats – not all of them, but taken collectively – have always been characterized by, to use a charitable term, skittishness.

The best thing to come out of the 2021 session might be putting a mining tax amendment on the 2022 ballot.

And even that might go nowhere.

Mining: You didn’t say ‘mining tax’ so neener neener

As you probably recall, during the second special legislative session this summer the Democrats passed three  – three! – resolutions supporting mining tax amendments, the idea being that during the 2021 session they would pick which one to pass a second time, thus putting it on the ballot in 2022.

Spoiler alert: The one they will pass will be the weakest one, the one Assembly Speaker Jason Frierson busted out seemingly at the last minute, dubbing it an “olive branch” to the mining industry.

Your Nevada mining industry, and the rural counties they control, appear poised to try to get any and all of them declared “null and void” in court. They contend that when your governor issued the proclamation setting the parameters for what lawmakers could consider during the special session he didn’t say the magic words “mining tax” so neener neener. (The counterpoint is that the amendments didn’t need to be specified in the proclamation because they are resolutions, not bills.)

Mining’s argument is not entirely faithful to what actually happened. Sisolak’s proclamation included a provision saying “if the Legislature passes any proposed constitutional amendments for a first time during a special session,” the Legislative Counsel Bureau would print it immediately so as to meet a necessary deadline to be considered in 2021.

But why be so coy, so vague? Were other constitutional amendments, apart from mining taxes, being considered? Eliminating the prohibition on a personal income tax, for example? Or perhaps ridding the state constitution of the malevolent two-thirds requirement?

Ha as if.

Everybody knew the language in Sisolak’s proclamation was about mining. So why didn’t Sisolak’s proclamation just say “mining tax” (or more specifically “net proceeds” tax, which is what we call it ‘round here), and preclude what must have been an anticipated legal challenge from Mining and Friends?

Alas, I am not among those with whom the Sisolak administration confides. However I am among those, which is to say everyone, who noticed Sisolak’s leadership on the issue of new revenue during both special sessions was conspicuously AWOL. Coy and vague are default settings on most politicians. Sisolak is not an exception.

‘Going to fight this with everything that we have’

Lander County has already filed a suit to nullify passage of the mining amendments. But instead of joining that, counties are waiting on Nevada Gold Mines, the unholy alliance between transnational mining giants Barrick and Newmont, to file theirs.

Christina Erling, a Barrick lobbyist said “Nevada Gold Mines will challenge this legislation including the constitutionality of how the Joint Resolutions came about,” according to the minutes of her presentation to the Eureka County Commission in October. 

At an Elko County Commission meeting in November, a representative from the county district attorney’s office told commissioners Nevada Gold Mines had prepared a brief, but not filed it yet. The attorney said he’d seen it, and told commissioners the main Barrick-Newmont argument echoes the one in the Lander County suit: Sisolak’s special session proclamation didn’t say mining tax, so passage of the constitutional amendment resolutions doesn’t count.

A couple weeks earlier Elko County commissioners had authorized the county attorney to sign on to a lawsuit when the time was right, a date presumably to be determined by Nevada Gold Mines.

Two of the three amendments passed over the summer would tax mining on gross proceeds instead of net. The industry hates that. “We’re going to fight this with everything that we have; we want to keep those net proceeds in the Constitution at net rate not gross rate,” Erling told Eureka County commissioners.

The “olive branch” amendment continues to tax mining’s net proceeds, but at a rate “not to exceed” 12 percent, compared to the 5 percent maximum currently in the constitution. Maybe mining will let that one go, confident they can muscle legislators — and the governor — to settle for a tax rate far south of 12 percent, and pay a relative pittance in addition to the already pitifully small mining taxes they pay now.

Or maybe mining will fight that one in court too.

(As an aside, if a mining tax amendment does survive to go before voters in 2022, Sisolak, up for reelection, will have to take a position on that. Yes, he’s probably hoping mining wins in court so that unpleasantness can be avoided.)

The upshot is mining sees a couple paths to victory. If they win, it will be because Southern Nevada Democrats, including and especially the one in the governor’s mansion, let them win.

But cheer up! Maybe Mitch McConnell will agree to a big stimulus bill that will help states — even states like Nevada which are loathe to help themselves — avoid making yet more painful budget cuts.

It’s a slim hope. Just like the prospect that the 2021 Nevada Legislature will be productive.

Hugh Jackson
Editor | Hugh Jackson was editor of the Las Vegas Business Press, senior editor at the Las Vegas CityLife weekly newspaper, daily political commentator on the Las Vegas NBC affiliate, and author of the Las Vegas Gleaner political blog. Prior to moving to Las Vegas, he was a reporter and editor at the Casper (Wyoming) Star-Tribune.