Newspaper column: Gun law backers too wily for their own good

The backers of a 2016 ballot initiative to create a state law requiring criminal background checks for all private party gun sales — something not required by federal law — are asking the courts to fix a fatal flaw that they themselves created.

Failure to comply with the Background Check Act requirement would carry a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

The measure, Question 1 on the November ballot, passed with a mere 50.45 percent of the vote, failing in every county except Clark.

The initiative backers — in order to avoid having a fiscal note saying what the mandatory background checks would cost taxpayers, something that might cost votes — wrote the new law to say that those in involved in a private gun sale must contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS], as described in 18 U.S.C. § 922(t), and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law …”

The Central Repository is handled by the Nevada Department of Public Safety and uses NICS data as well as state and local data to run background checks required by federal law and those sought voluntarily by private gun sellers.

After the initiative passed the FBI was twice asked if would conduct the private sale background checks for the state, but refused, saying state law “cannot dictate how federal resources are applied.”

Attorney General Adam Laxalt’s office issued an opinion saying the law is unenforceable since the state could not force the federal government to perform the background checks and the law specifically prohibits the state from doing so.

The lawsuit filed earlier this month on behalf of three individuals names Gov. Brian Sandoval and Laxalt as defendants. The suit asks the court to force Sandoval to enforce the background check law or, in the alternative, to sever any portion of the law that is invalid or unenforceable. In other words, rewrite the law that the voters so narrowly approved.

Like most laws the Background Check Act contains a severability clause that states if any portion of the law is found invalid or unconstitutional that should not affect the law as a whole because that part could be excised. But the section that the suit seeks to remove was placed there specifically to avoid incurring cost to the taxpaying voters. Without that section the election outcome might well have been different.

On the day the suit was filed Laxalt sent an opinion to the governor telling him that he has the authority to again ask the FBI to conduct private sale backgrounds, but that the request would be “unique and unprecedented” and might jeopardize the state’s current status in which it conducts all federally required and voluntary private sale background checks.

In the December opinion declaring the Background Check Act unenforceable, Bureau Chief Gregory Zunino pointed out that the state-run background checks are in fact superior to those run through just the federal database.

“Because background checks run through Nevada as the Point of Contact incorporate data from both NICS and Nevada’s own state records, the process as currently administered by the Department ensures that persons legally barred from firearms possession do not circumvent the bar simply because the FBI may lack records that Nevada possesses, like mental-health records, records of domestic violence, misdemeanor criminal records, arrest reports, and restraining orders,” Zunino noted. “By having Nevada serve as the Point of Contract, a wide net is cast. The FBI recently suggested, for instance, that the lack of Point of Contact program in South Carolina played a role in Dylan Roof acquiring a gun before murdering nine congregants at a church in Charleston, South Carolina.”

It should be noted that the gunman who fired into a country music concert from the 32-second floor of the Mandalay Bay killing 58 and injuring about 500, obtained his dozens of weapons legally, passing all required background checks in Nevada and several other states.

The initiative was a futile gesture at best, but the backers outsmarted themselves by trying to hide its true cost from the voters.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

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Editorial: Commerce tax is unnecessary and burdensome

Gov. Brian Sandoval has been crying about a paper cut as though it were an amputation.

Ever since Attorney General Adam Laxalt stated that he would run for governor next year and one of his platform positions would be the repeal of the 2015 commerce tax, Sandoval has been lobbing brickbats, even though Laxalt suspended his campaign announcement just hours after the Mandalay Bay shooting massacre that left 58 dead and about 500 injured at an outdoor country music concert.

“Anyone supporting a repeal of the Commerce Tax must explain to Nevada’s children, families and businesses which education initiatives will be cut if it is eliminated,” Sandoval wailed in a statement reported by the website Nevada Independent. “Will they cut gifted and talented programs, end all-day kindergarten, eliminate special education resources, decrease literacy programs that help students read by third grade, cut autism funding, stop career and technical education, and get rid of technology in schools grants? Any discussion of eliminating this revenue source must include answers about where in the budget they will cut.”

The commerce tax is a tax on gross receipts on all businesses grossing more than $4 million a year. It has different tax tables for 27 different industries — ranging from a low of 0.056 percent for mining to a high of 0.362 percent for rail transportation — and there are 67 different tax brackets. It is costing businesses untold millions to comply with all the paperwork needed to enforce and collect the tax and the state must spend millions to enforce tax compliance.

Lawmakers passed the commerce tax at Sandoval’s urging as part of his $1.5 billion tax increase, even though the voters in November 2014 rejected a commerce tax at the ballot box by 79 percent to 21 percent.

In May the Economic Forum, which is tasked with estimating state general fund revenues so lawmakers can dodge blame for overestimating, found the state would rake in $140 million more than anticipated this year. The commerce tax raised a mere $190 million, meaning that with just a $50 million nip and tuck in the budget the tax could be eliminated and the budget balanced.

It should be further noted that the general fund budget grew 12.3 percent over the previous two years, while inflation amounted to 2.5 percent. Since 2011 the state general fund budget has grown by 32.3 percent, while inflation amounted to 7.9 percent.

Sandoval, who is term-limited and may not seek re-election, continued his tirade at a meeting in Las Vegas this past week where he told reporters, “I think if somebody’s going to make a proposal like that, they’ve got to stand in a schoolroom with a room full of parents and teachers and be able to explain who they’re going to cut.”

He asked rhetorically whether the cuts would be special education, gifted and talented, technology or something else.

Apparently no one pointed out to him that Nevada has increased K-12 public school funding by 80 percent per pupil, adjusted for inflation, over the past four decades, during which student test scores have actually fallen slightly.

Might other things besides education be trimmed? Might the growth in overall state spending ever be curbed?

Didn’t lawmakers just agree to spending $750 million in tax money to build a domed football stadium? Hasn’t the state doled out $1.7 billion in tax credits to Tesla, Amazon, Switch and other billion-dollar companies?

If Sandoval is so concerned about priorities, he could look at the total budget.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Jobs and wildlife can coexist

In 2015 the U.S. Fish and Wildlife Service determined that years of science-based protections by federal and state land use plans had substantially reduced risks to more than 90 percent of the greater sage grouse’s breeding habitats across its 173 million-acre range.

Thus, its extinction no longer imminent, the breed was removed as a candidate for listing under the Endangered Species Act.

Despite this finding the Obama administration unilaterally instituted draconian land use restrictions across 10 Western states intended to prevent any presence of the non-native, invasive species known as mankind.

But the Interior Department under Montanan Ryan Zinke is displaying an uncommon outbreak of common sense.

Just this past week the Bureau of Land Management canceled Obama’s prohibition of mining on 10 million acres of federal lands across six Western states, including Nevada. The BLM also announced plans to invite public comments on reworking land use plans that a Nevada federal judge had determined were illegal.

Greater sage grouse (BLM pix)

In a press release the BLM reported the withdrawal of 10 million acres was unreasonable, because mining affected less than 0.1 percent of sage grouse range.

“The proposal to withdraw 10 million acres to prevent 10,000 from potential mineral development was a complete overreach,” said acting BLM Director Mike Nedd. “Secretary Zinke has said from the beginning that by working closely with the states, who are on the front lines and a valued partner in protecting the health of these lands, we can be successful in conserving greater sage grouse habitat without stifling economic development and job growth. And that’s what we intend to do — protect important habitat while also being a good neighbor to states and local communities.”

The 10 million acres had been off-limits to mining for two years, but that restriction expired Sept. 24.

Gov. Brian Sandoval issued a statement saying, “I support Secretary Zinke’s action to cancel this withdrawal and terminate the environmental analysis associated with it. Mining has not been identified as a widespread significant threat to the sage-grouse and I appreciate the Department of Interior recognizing the overreach of this action, which had such significant economic impact on our state mining and exploration industries.”

Nevada Attorney General Adam Laxalt said of the BLM’s decision, “I am gratified that the BLM has accepted our basic argument, which is that we can balance conservation of the sage grouse without injuring the economic lifeblood of Nevada’s local communities. In our suit, we consistently urged that the BLM failed to properly take into account Governor Sandoval’s well-supported and convincing comments about the many shortcomings of the 2015 plan.”

On March 31 in a suit brought by the state of Nevada, nine counties, several mining companies and a ranch, Nevada federal Judge Miranda Du ruled Interior land agencies erred in preparing environmental impact statements for 2.8 million acres of land primarily in Eureka and Humboldt counties and must prepare a supplemental statement.

BLM’s Nedd said of the decision to rework the environmental impact statement, “The BLM is committed to being a good neighbor and cooperating with its partners at all levels of government, including states, as well as tribal leaders, industry and conservation groups, ranchers, and other stakeholders throughout the amendment process. During this process, we are particularly interested in hearing from the many governors whose states put hard work and time into collaborative efforts to develop the existing plans. We welcome their input.”

Sandoval has complained in the past about Nevada’s input on sage grouse protection being ignored.

Nevada Mining Association President Dana Bennett was quoted as saying of the BLM change of direction, “A wholesale land withdrawal that encompassed 20 times more land than all mining activity combined did little to address the risk of fire and invasive species that threaten the species and its habitat.”

Of course the usual environmentalist reaction was one of doom and gloom. “This move shows Zinke’s total contempt for imperiled species and the places they need to live,” said Randi Spivak, public lands director at the Center for Biological Diversity. “Zinke might as well form a shotgun posse to kill off these animals directly. The Trump administration is perfectly willing to wipe out sage grouse, and a host of other species, to reward its industry friends.”

Interior’s own draft environmental impact statement estimated its grouse restrictions in Nevada alone would reduce employment by 739 jobs every year for the next 20 years.

Jobs and wildlife can coexist when just a little common sense is applied.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Time to end those NFL tax subsidies?

Nearly entire Raiders team sits for national anthem.

Before you poke someone in the eye, you should take your hand out of his pocket.

Michelle Malkin’s column posted at Townhall points out that those NFL players kneeling during the national anthem are doing so on turf paid for by taxpayers, not just ticket holders.

“Over the past decade, new tax-supported NFL stadiums rose up for the Indianapolis Colts (the $720 million Lucas Oil Stadium), the Dallas Cowboys (the $1.15 billion AT&T Stadium) the New York Jets and Giants (the $1.6 billion MetLife Stadium, the Minnesota Vikings (the $1.1 billion U.S. Bank Stadium), the Atlanta Falcons (the $1.5 billion Mercedes-Benz Stadium), and the San Francisco 49ers (the $1.3 billion Levi’s Stadium in Santa Clara),” Malkin notes.

She also reports that there soon will be a $2.6 billion stadium for the Los Angeles Chargers and Rams, as well as a $1.9 billion stadium for the Oakland Raiders when they move to Las Vegas. Though she neglects to point out that $750 million of that Raider stadium will be covered by room taxes, she does note that there is an $83 million taxpayer debt on two-decade-old renovations to the Alameda County Coliseum that the Raiders are abandoning.

Malkin also noted that a majority of economists say providing state and local subsidies to build stadiums for professional sports teams usually costs taxpayers more than any economic benefits.

So team players and owners are sticking it to taxpayers figuratively and literally.

If you just can’t wait till Thursday’s newspaper for Wayne Allyn Root’s predictable pro-Trump screed on this topic, it is already posted at Townhall. He argues that the NFL is committing economic suicide.

“It’s time for a nationwide boycott,” Root cheer leads. “It’s time for 63 million Trump fans to stop watching. Turn off NFL games on your TV for the next month. Watch the owners cry. Watch them panic. Watch them beg. Watch them order an end to all kneeling or disrespect for the national anthem. Watch them sing a whole new tune.”

He, too, gets around the taxpayer aspect and suggests that people call their governors and demand an end to all subsidies for the NFL.

Brent Bozell, also posted at Townhall, points out the liberal media jumped all over Trump’s tweets about the anthem kneeling equating them to racism and censorship, spurring “cowardly NFL teams” up the ante on Sunday with bigger displays of disrespect.

“The liberal media are shameless hypocrites when they polarize the country and then complain the country is polarized,” Bozell writes. “They have honored (Colin) Kaepernick as some kind of ‘star-spangled’ patriot and pushed his radical racial agenda. They have pressured the NFL and every other televised sports league to take liberal stands on everything from race to gun control to imposing transgender bathrooms.”

Local newspaper columnist Victor Joecks also weighed in on the NFL tax subsidy boondoggle today.

He noted how Gov. Brian Sandoval boasted that the Raider stadium would be a boon to the state’s economy. There were projections that the stadium would produce almost 6,000 annual jobs, total wages of $230 million and an increase of 1 million visitors annually.

“By putting taxpayers on the hook for a significant portion of the stadium’s cost, Raiders’ owner Mark Davis reduced his risk and directly benefits from a $750 million subsidy.  That makes sense for him. It never made financial sense for you,” Joecks writes. “The NFL protests are just another reminder of why government shouldn’t pick winners and losers in the economy.”

 

 

 

Editorial: Nevada must examine Yucca Mountain opportunities as well as risks

There are two things we can’t seem to bury: Nuclear waste and the debate over Yucca Mountain.

At something dubbed the RadWaste Summit at a Las Vegas hotel earlier this month the debate over whether or not to bury nuclear waste in a labyrinth of tunnels inside Yucca Mountain continued, breaking no new ground nor changing the minds of anyone so far as we could tell.

Once again it was the debate over whether science or politics would or should prevail. Little has changed since 1987 when Louisiana Sen. J. Bennett Johnston rammed through what many Nevadans affectionately call the Screw Nevada bill, which politically rather than scientifically singled out Yucca Mountain as the sole site to be studied for nuke waste disposal.

Back then there were six sites being studied for by the Department of Energy as potential disposal sites for the nation’s growing pile of radioactive waste from commercial nuclear reactors, waste the federal government had agreed to take off the hands of private power companies.

In addition to Yucca Mountain in Nye County the sites were in Mississippi, Texas, Utah and Louisiana. The Mississippi site was the frontrunner at that time, with the Vacherie salt dome, mere miles from Sen. Johnston’s home, the No. 2 choice.

In 1982 the need for a nuke waste dump was urgent, according to the Office of Technology Assessment, which said “existing reactors are running out of spent fuel storage space, and by 1986 some may face the risk of shutting down for some period if there are delays in efforts to provide additional storage capacity.”

Somehow, the industry has limped along ever since by using pools of water on the power plant sites all over the country — not pleasing the politicians whose constituents live near those sites.

At the RadWaste confab, the press tended to quote Robert Halstead, executive director of the governor’s Agency for Nuclear Projects and an opponent of licensing Yucca Mountain, and Nye County Commission Chairman Dan Schinhofen, a proponent of using Yucca Mountain as a way to create jobs and boost the economy of his county.

Schinhofen was quoted as saying that opposition to the Nuclear Regulatory Commission’s efforts to study whether to license the site relies “on political science over nuclear science.”

While Halstead responded that it was “political science not earth science” that caused Congress to designate only Yucca Mountain as a repository.

Though most Nevada politicians oppose the licensing of Yucca Mountain, they are outnumbered in Congress.

If the scientific study of the site, if it is ever completed, proves the site to be unsafe by all means close up the tunnels and walk away.

On the other hand, Nevada should continue to negotiate for benefits and suggest that the site should be more than just a dump.

In a letter earlier this year the Nye County Commission stated, “The Yucca Mountain nuclear repository would bring federal dollars to Nevada, create well-paying science and construction jobs, and improve the state’s infrastructure. The project would also strengthen national security, a role Nye County and Nevada has always taken the lead in through the past eight decades.”

Others note that the country should consider recycling the waste shipped to Yucca Mountain, as is done in a number of countries, to create new nuclear fuel that could be sold — with the proceeds benefitting Nevada citizens.

“The state feels the state can’t win in this,” Schinhofen was quoted as saying after the recent panel discussion. “Well, if they would take the other view that this is a multibillion-dollar, multigenerational project, if it’s found to be safe, the state wins. I mean, we win big. This rivals the Hoover Dam. It’s a huge project that would bring infrastructure, it would bring jobs, it would bring high-paying jobs, it would bring money to our universities.”

Nevadans should be shrewd negotiators and not let opportunities be missed due to misguided fears.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

ObamaCare: How can states ‘lose’ what they never had?

So, your boss promises to give you a raise next year, prompting you to make plans for how to spend that windfall. In the meantime, that boss is fired and replaced with a new boss, who nixes the raise. That means you “lost” money, right?

That’s how it works in Washington-speak.

According to Modern Healthcare, “Two nonpartisan analyses of the Graham-Cassidy bill show that many states represented by Republican senators would lose billions of dollars in federal healthcare funding through 2026 and far larger amounts after that.”

The morning paper says Nevada would lose $2 billion from 2020 to 2026.

Nevada Republican Gov. Brian Sandoval was one of 10 governors signing a letter opposing Graham-Cassidy, while Nevada Republican Sen. Dean Heller is a sponsor of the bill.

According to The Wall Street Journal, Graham-Cassidy would address the huge inequities in ObamaCare Medicaid funding between the states.

“According to the proposal’s authors, Washington in 2016 sent states anywhere from about $400 (Mississippi) to over $10,000 (Massachusetts) per beneficiary whose annual income was between 50% and 138% of the federal poverty level,” the paper reports. “In contrast, the size of the Graham-Cassidy block grant would not depend on whether a state chose to expand its Medicaid program. Thus, it would equalize the base per-person amount the federal government gives states. In 2026 it would be about $4,400 for each qualified beneficiary. The bill then adjusts these payments to compensate for factors such as demographic differences and various levels of illness among the states.”

So, some states will lose all ill-gotten windfall from ObamaCare.

Sen. Bill Cassidy at a health-care news conference in Washington earlier this month. (Getty Images via WSJ)

Separation of Powers Clause interpretation going to state Supreme Court … again

What a difference a single word makes.

The Nevada Policy Research Institute’s (NPRI) legal arm, the Center for Justice and Constitutional Litigation (CJCL), this week filed notice with the Nevada Supreme Court that it is appealing the decision of a Carson City judge dismissing its lawsuit against a state senator for violating the state Constitution’s Separation of Powers Clause.

“Defying the clear language of the Nevada constitution, Nevada Supreme Court precedent, and a 2004 Attorney General Advisory Opinion by then-attorney-general Governor Brian Sandoval, Judge (James) Russell relied upon a non-binding opinion from the Legislative Counsel Bureau in his ruling from the bench — but we believe the actual words of the state constitution should matter more,” declared CJCL Director Joseph Becker in an email press release.

CJCL sued state Sen. Heidi Gansert because she also is an employee of UNR.

The Constitution says any person serving in one branch of government may not perform “any function” of another branch. But the Legislature’s lawyers, the Legislative Counsel Bureau (LCB), back in 2004 penned a non-binding opinion that stated a person my serve in the Legislature if they do not exercise “any sovereign functions” in another branch.

The word sovereign, whatever definition one may ascertain, is nowhere to be found the Separation of Powers Clause.

But apparently the judge accepted the LCB’s rewrite over the original as law.

“We believe the plain language of the constitution should take precedent over a non-binding LCB opinion, or the preferences of the ruling class,” commented Becker. “And we look forward to the appeals process finally giving further legal clarity on the issue.”

This fight has been going on for years.

There have been years in which nearly half the lawmakers in Carson City were either government employees or the spouses of government employees. In some years every Senate and Assembly leadership post was held by a public employee. Currently nearly a dozen lawmakers hold down state or local government jobs.

In 2004 then-Secretary of State Dean Heller asked the Supreme Court to remedy this skirting of the Constitution. Heller asked the court to find that service in the Legislature by unidentified executive branch employees violates the concept of separation of powers and to direct the Legislature to enforce the Separation of Powers Clause.

But the court ruled that doing so would violate — wait for it — the Separation of Powers Clause, because the Constitution also states that the Senate and Assembly are to determine the qualifications of their members, thus the judicial branch telling the legislative branch who its members may be violates the Separation of Powers Clause. Got it?

Never mind that the reason for separation of powers is not to allow each branch to stand totally autonomous and unanswerable to anyone, but to provide checks and balances when one branch runs amok.

But the court did allow that “declaratory relief could be sought by someone with a ‘legally protectible interest,’ such as a person seeking the executive branch position held by the legislator.”

Under that guidance, the CJCL first sued state Sen. Mo Denis on behalf of a person who wanted Denis’ $56,000-a-year job at the Public Utilities Commission. A judge declared the case moot when Denis resigned his PUC job.

NPRI’s lawyers came back with a similar suit against state Gansert on behalf of a person who wants her public relations job at the University of Nevada, Reno — a job that yields $210,000 a year in pay and benefits.

Now that the district court judge has ruled that the Separation of Powers Clause is meaningless, it is back to the Supreme Court.

In a 1967 case, the Nevada Supreme Court flatly stated, “The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people.”

That was 50 years ago.