We are still waiting for the voice of Nevada voters to be heard — 22 years and counting

Facebook has this algorithm that pops up something you’ve shared online in the past and asks if you’d like to repost it. It might a cute pix of your dog or a vacation remembrance.

This time it turned out to be a reminder that the will of the voters of Nevada had been ignored for 16 years. It was a link to a blog based on a column that appeared in the Battle Born Media newspapers. Oh yes, it was first posted in February 2012, six years ago, so now the will of the Nevada voters has been ignored for 22 years.

Here is the column appeared in the newspapers but has long since disappeared into the ether:

By Thomas Mitchell

This is not federalism. It is feudalism.

As most Nevadans know, the federal government holds sway over somewhere between 83 and 92 percent of the land in this state, depending on which official government source you cite. That is the highest percentage of any state in the union, including Alaska.

This is the result of something known as a Disclaimer Clause included in the statehood act admitting Nevada as a state. As a condition of entry into the union, the state was required to “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

The federal government, not the state, controls the land known as Mount Wilson. (Pix by Jo Mitchell)

Putting aside the extortionate nature of the demand and that it was agreed to under duress and that it encumbered generations not yet born, nowhere in the Constitution is the federal government granted an enumerated power to deny any state sovereignty over its own lands. Even sharecroppers have more rights than that.

Over the years it has been unsuccessfully argued that the Disclaimer Clause violates the spirit and letter of the Equal Footing Doctrine under which every new state admitted to the union does so under the same conditions as the 13 original states.

On Oct. 31, 1864, the president proclaimed:

“Now, therefore, be it known, that I, Abraham Lincoln, President of the United States, in accordance with the duty imposed upon me by the act of congress aforesaid, do hereby declare and proclaim that the said State of Nevada is admitted into the Union on an equal footing with the original states.”

In fact, in 1911 the U.S. Supreme Court in Coyle v. Smith opined, “No prior decision of this court sanctions the claim that Congress, in admitting a new State, can impose conditions in the enabling act, the acceptance whereof will deprive the State when admitted of any attribute of power essential to its equality with the other States.”

That seems clear enough, but it has been roundly ignored.

Grazing rights are routinely canceled for arbitrary reasons. Roads are closed in order to protect some minnow or bug no matter how much it inconveniences the residents. Permission to obtain rights of way and mining permits languish for decades in the federal bureaucracy. All should be responsibilities of the state of Nevada.

It is estimated that 13 Western states forgo $4.2 billion a year in property taxes due to the vast holdings of untaxed land by the federal government.

In 1993 Nye County Commissioner Dick Carver wrote a lengthy letter to the governor and the various heads of the federal agencies controlling public land in the state. He convincingly argued:

“The people of the Nevada Territory had no authority to pass this act. Research has shown that first, the people of the Territory of Nevada had to give up all their ‘interest’ in the unappropriated lands of the Nevada territory to the Congress of the United States so Congress could pass said lands to the State of Nevada upon acceptance of Nevada into the Union. Then Nevada would become a free sovereign state as the original thirteen states relating to land.”

What many have forgotten is that in 1996 the citizens of Nevada voted to change the Nevada Constitution and strike the Disclaimer Clause. It passed with more than 56 percent of the votes.

Ballot Question 4 read simply: “Shall the Territorial Ordinance of the Nevada Constitution be amended to remove the disclaimer of the state’s interest in the unappropriated public land?” Yes or no.

Nearly 16 long years later, the state Constitution still contains a footnote explaining that the amendment was “proposed and passed by the 1993 legislature; agreed to and passed by the 1995 legislature; and approved and ratified by the people at the 1996 general election, effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary.”

Congress has not consented. There has been no legal determination.

Speaking of feudalism, the right to petition for redress of grievances was first embodied in the Magna Carta in 1215.

The Founders thought this so fundamental they included it in the First Amendment as one of five key rights delineated there.

For the voters of Nevada, this right has not been denied, just simply ignored.

In the subsequent blog I noted that I had emailed the office of Gov. Brian Sandoval and asked what he would do, if anything, to address the vote of the citizens of Nevada taken nearly 16 years earlier, but roundly ignored ever since.

I wrote, “I’ve had no reply yet. Just like the voters. I wonder if I will still be waiting 16 years hence.”

Well, it has been six years, only 10 more to go.

YouTube video posted with the blog six years ago:




Editorial: Nevada should impose work requirement for Medicaid enrollees

Even though Congress could not find a way to repeal the budget-busting, economy-distorting Affordable Care Act, affectionately known as ObamaCare, there are still a few things the states can do to ameliorate its impact.

Chief among these, according to a report prepared for the Nevada Policy Research Institute and the Washington Policy Center by Dr. Roger Stark, is to implement work requirements for able-bodied Medicaid enrollees. The Trump administration announced recently that it is willing to accept waiver requests — known as 1115A waivers — from states that wish to impose a work requirement.

“Applying for a waiver to implement work requirements is a common-sense reform, and it’s one that’s already supported by the administration,” says NPRI policy analyst Daniel Honchariw. “Medicaid should help its able-bodied members who are willing to work, rather than encouraging an unsustainable and demoralizing cycle of dependency.”

Honchariw notes that 60 percent of the Nevadans who gained free Medicaid coverage under ObamaCare’s expansion of the program — approved by Republican Gov. Brian Sandoval, by the way — did not earn a penny of income in all of 2015. Expanded Medicaid now covers 600,000 Nevadans at annual cost of about $5,700 each.

“Such costs are unsustainable over the long-run without dramatic tax increases,” Honchariw states.

According to Dr. Stark, ObamaCare has resulted in only 20 million of the 50 million uninsured people before the law was passed — without a single Republican vote, by the way — to gain health insurance coverage. A large portion of those were handed Medicaid. In Washington state, 80 percent of the newly insured were placed on Medicaid.

“Obamacare has raised insurance premiums for virtually everyone in the country outside of the free Medicaid entitlement. Health care spending was 17 percent of the economy when the ACA became law,” Stark writes. “By 2021, with the ACA in place, estimates show that the country will spend 21 percent of the annual economy on health care.”

He said this past year the cost of Medicaid was $545 billion nationally and is projected to grow to $700 billion by 2020.

Studies have found that the health outcomes for people covered by Medicaid are no better than the uninsured.

We encourage Nevada’s lawmakers to take advantage of the work-requirement waiver and other options to curb the cost to taxpayers and break the cycle of dependency such entitlements foster. —TM

 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.

Editorial: Nevada’s own sex scandal needs a full airing

The year 2017 will go down as the year sexual harassment claims erupted — from Hollywood to D.C., from Harvey Weinstein to Kevin Spacey, from senate candidate Roy Moore to Sen. Al Franken.

Lest we forget, this year Nevada had its own sex scandal, but, unlike the others, this one was buried in secrecy and the accused allowed to resign and slink away.

State Sen. Mark Manendo, a Las Vegas Democrat, resigned in July after the taxpayers shelled out $67,125.12 to a law firm to investigate allegations of multiple incidents of inappropriate behavior toward female staffers and lobbyists over a number of years.

Former state Sen. Mark Manendo

Senate Majority Leader Aaron Ford, a Las Vegas Democrat now running for Nevada attorney general, hired the law firm during the legislative session earlier this year after learning of complaints.

The law firm — after interviewing 58 people, including Manendo — reported in July that Manendo violated the Legislature’s anti-harassment policy on 14 occasions during the 2017 session alone. It also said Manendo tried to interfere with the investigation by trying to get an accuser to recant and attempting to learn the names of other accusers.

In his resignation letter to Gov. Brian Sandoval, Manendo made no mention of the allegations against him. He wrote, “I am grateful for the support, trust, and confidence bestowed upon me over the years by my constituents and colleagues. As my senate term comes to an end, I feel now is the time to step aside and look for new opportunities to serve others.”

When Manendo resigned, the state Senate Democrats put out a press release saying, “Such behavior is not tolerable in any context, let alone by an elected member of the Nevada Senate. It is in the best interests of the institutions of the State Senate and the Nevada Legislature that Senator Manendo resigns from office.”

But the statement also declared, “In order to maintain the privacy and confidentiality promised to the victims and witnesses who spoke to the independent investigator, the investigative report will not be made public.”

Did the Democratic senators purposefully hide the severity of the misdeeds of one of their own that had been going on unaddressed for years?

After news media outlets filed requests for access to the investigative report under the state Public Records Law — which states that, unless exempted by statute, all public records are available for public scrutiny — the Legislative Counsel Bureau (LCB) issued a 37-page document denying those requests.

The LCB explained, strangely enough, “The Public Records Law cannot be applied to the requested materials because the Legislature and its Houses, committees, agencies, caucuses, members, officers and staff do not come within the statutory definition of ‘governmental entity’ as that term is used in the Public Records Law.” The Legislature is not a government entity?

Barry Smith, executive director of the Nevada Press Association, commented to the Las Vegas newspaper at the time, “Their lawyers have built a case for protecting legislators from public scrutiny on the argument that it’s not in the public interest and the Legislature is not a governmental entity. That’s ridiculous. It’s the kind of double-talk used by people to justify all kinds of nonsense.”

Concealing a government-contracted and taxpayer-funded report on the behavior of an elected official is tantamount to obstruction of justice. How are the citizens ever to be able to evaluate the seriousness of the allegations or even whether the the allegations might have risen to the level of warranting criminal prosecution?

How high or low is the bar set for future lawmakers and legislative staffers and lobbyists?

We believe the public deserves a full accounting and that someone running for attorney general should join us in demanding that accountability.

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.

Tesla lagging in more ways than one

According to the morning paper, the Tesla Motors gigafactory near Sparks is on track to meet its hiring and tax incentive goals, if not its manufacturing goals.

In a 2014 special session of the Nevada Legislature the company was handed $1.3 billion of tax credits and abatements for which it would qualify if it met certain hiring and capital investment goals. The plan was to build a $5 billion, 10 million-square-foot factory to make batteries for its electric cars and employ 6,500 workers. The money was to be channeled through the Governor’s Office of Economic Development.

Today’s paper quotes the governor’s spokeswoman as saying, “Tesla has met all of its benchmarks and exceeded the state’s goals.”

The story states the factory has 1,400 full-time employees and that Tesla estimated it would need 6,500 employees in the Gigafactory by 2024.

But in 2014 the paper reported that Tesla planned to employ 4,700 workers by 2017 and the 6,500 by 2018.

According to projections published by the GOED at the time, the company payroll would be more than $267 million this year. But using the payroll figures in today’s paper puts the payroll closer to $120 million.

The lithium-ion batteries that are supposed to be built at the factory are to power Tesla’s more modestly priced Model 3, which was to be in full production for by 2018.

According to Forbes, the company planned to building 20,000 cars a month by December, but in the third quarter of this year the company built only 260 cars, below the goal of 1,500. The problem is with the batteries.

Your tax dollars in inaction?

Inside Tesla gigafactory




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.

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.