Newspaper column: Judge confirms gun background check law unenforceable

A district court judge brought the hammer down on backers of a voter-approved initiative intended to require background checks prior to gun sales by private individuals, telling them the courts and the executive branch cannot fix the problem they themselves created.

The Background Check Act, Question 1 on the November 2016 ballot, passed by a whisker with only 50.45 percent of the statewide vote, failing in every county except Clark. Nevadans for Background Checks reportedly spent $19 million on the campaign for passage with $18 million coming from former New York City Mayor Michael Bloomberg and his political action committee Everytown for Gun Safety. The NRA reportedly spent $6.5 million in opposition.

As Judge Joe Hardy pointed out in his 22-page ruling this past week the Question 1 backers included in the law a requirement that background checks must be conducted by the FBI and not the Nevada Department of Public Safety (DPS), which does the background checks for licensed gun dealers under an arrangement with the FBI called a Point of Contact. This verbiage allowed supporters to argue in the obligatory fiscal note that “no Nevada tax dollars” would be used to conduct the background checks.

Judge Hardy concluded, “This framing and representation no doubt facilitated passage by the voting public,” which seems reasonable considering how narrow the vote margin turned out to be.

The initiative specifically spelled out that those involved in a private gun sale would have to contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS] … 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 DPS 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.

The Background Check Act carried a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

But the FBI refused to conduct the background checks, saying a state law could not compel a federal agency to engage in such a costly undertaking.

The backers’ lawsuit sought to have the court force the governor and the state attorney to get the FBI to conduct the background checks or to sever that section from the law. The judge wrote that the state constitution’s separation of powers clause prohibits him from ordering the executive branch to do something so long as their actions are not arbitrary and capricious, and the section could not be severed because that would destroy a central component of the law approved by the voters.

Nevada Attorney General Adam Laxalt, whose office had declared the initiative unenforceable, welcomed the court decision agreeing with his office’s conclusion.

“The Court’s 22-page decision reaffirms what my office has been saying all along — that the Act ‘is unenforceable as written,’” Laxalt was quoted as saying in a press release. “This is not because of anything that I or other Nevada officials have failed to do; in the words of the Court, we have ‘undertaken a real and substantial effort to implement the law.’ Rather, it is a result of Question 1’s flawed drafting. It is unfortunate that the very same people who imposed this defective law on all Nevadans have gone to such lengths to use its brokenness as a reason to politically attack me and other Nevada’s elected officials through litigation. Hopefully, today’s careful decision puts an end to this practice.”

Laxalt is the Republican nominee for governor on this fall’s ballot.

The judge also noted that allegations by the plaintiffs that the attorney general and Gov. Brian Sandoval had failed to aggressively work to make the law enforceable we’re unfounded, detailing communications attempting to negotiate with the FBI, and saying the proponents made improper emotional appeals about public safety.

Gov. Sandoval’s office told The Nevada Independent, a web-based news site, “the Governor’s Office believes the order speaks for itself.”

Basically, the drafters of the initiative were too wily for their own good, opting for selling the law as tax-free and thus building in its own Catch-22.

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.

 

Could Nevada use L.A. proposal for Hoover Dam to its benefit?

Turbines inside Hoover Dam. (Pix via NYT)

OK, what’s in it is for us?

Today the Las Vegas Sun insert carried a six-day old New York Times story outlining a proposal by Los Angeles Department of Water and Power to use Hoover Dam and Colorado River water to smooth out its flow of electricity. The utility has so much intermittent solar and wind power that sometimes it must pay others to take it off its hands lest it overload the grid and result in blackouts.

The plan is to build a $3 billion system of pipes and pump stations that would use that excess power to pump water from downstream of the dam back into Lake Mead. When the utility needed power — when the sun doesn’t shine or the wind doesn’t blow — water would be released through the dam’s turbines to generate power.

The Times article compared the scheme to using the dam as a sort of storage battery.

Of course, the scheme is rife with potential problems. How would it affect water availability downstream? What would be the environmental impact in general and specifically for the herds of bighorn sheep? How would it impact recreational uses, especially boating in Lake Mohave? What about the economics?

The concept is not new, though the scale of this proposition is rather audacious.

Back in 2011 a proposal was floated to build what is called a pumped storage project in Eldorado Valley south of Las Vegas.

Though it sounded vaguely like a perpetual motion machine, it was based on the principle of supply and demand. Like in the stock or currency market — buy low, sell high.

Eldorado Pumped Storage filed an application for permission to study the feasibility of building a closed-loop hydropower facility. The idea was to build a 10,000 acre-foot reservoir at an elevation of 3,570 feet and another at 1,500 feet. During the day, when power is expensive, the water would flow through turbines and the electricity could be sold on the grid. At night, when power is cheaper, the water would be pumped back to the top of the hill.

A similar plan was once proposed for the gypsum mining property across from Blue Diamond.

Nothing has been heard since about either proposal.

The technology has been around since the late 19th century and there are several working pumped storage facilities around the world.

As for the Hoover Dam proposal, what’s in it for Nevada, which would bear the brunt of the impact of disturbances?

Nevada gets only a quarter of the power generated by Hoover Dam, while Arizona gets less than 20 percent and the rest flows to California.

As for Lake Mead water, California gets 4.4 million acre-feet a year, Arizona 2.8 million acre-feet and Nevada a mere 300,000 acre-feet.

At the end of the lengthy Times report, Nevada state Sen. Joe Hardy of Boulder City is quoted as suggesting that Nevada would be willing to negotiate.

“The hurdles are minimal and the negotiations simple, as long as everybody agrees with Nevada,” Hardy told the newspaper. “It would be nice if there was a table that they would come to. I’ll provide the table.”

Perhaps a greater share of power or water could be wrested in such a negotiation.

New York Times video of Hoover Dam.

Editorial: Bill would facilitate doctors ‘seeing’ patients remotely by using technology

Nevada already has one of the lowest doctor-to-patient ratios in the nation — 47th to be precise. Add to that the time and expense to bring the two together for in-person visits when the patient is living in a remote rural area.

This is where a bill sponsored by Assemblyman James Oscarson, R-Pahrump, comes into play. Assembly Bill 292 — co-sponsored by state Sens. Pete Goicoechea, R-Eureka, and Joe Hardy, R-Boulder City — would require private insurers and Medicaid to reimburse for medical care provided electronically, such as videoconferencing, known as telehealth.

In the past, insurance companies have been reluctant pay for anything other than in-person doctor visits.

“It’s a bill that will really open a lot of areas to be able to access health care in a health process that is sweeping the country,” Oscarson said during a recent interview. “Open up specialists so people don’t have to travel. Open up to Medicaid. Open up to all kinds of different specialty services to be available. We’ve been having meetings on telehealth for the last 18 months in the governor’s office every month and having virtually ever person engaged in those conversations from the medical boards to the nursing boards to the EMS providers to the physicians boards, everybody engaged. We’re fine-tuning it right now.”

In a recent hearing before the Assembly Committee on Commerce and Labor on the bill, Dr. Tracey Green, chief medical officer for the Nevada Department of Health and Human Services, noted that Nevada now has more than 600,000 people enrolled in Medicaid and the percentage of uninsured has dropped dramatically, but there are no more doctors to see this greater patient load.

“We are looking at a health provider shortage across our state,” she testified, especially in many rural and in many specialty practices.

Dr. Green said the state needs to look at alternative ways to efficiently use the health care providers we do have.

“Telehealth across the nation has really opened up an opportunity for individual patients to receive access to services,” she said, “but as importantly it also opens up a consulting network for our current providers.”

For example, she noted that in an area that has no psychiatrist, a primary care physician could consult with a psychiatrist in another part of the state, allowing the doctor to provide appropriate care.

The bill allows a physician to practice wherever they are rather than always having to bring the patient and physician together, often over great distances.

Also during that committee hearing, Oscarson noted, “As we all know the Affordable Care Act mandates that all persons have health insurance, but we also know the distribution of Nevada’s population poses a challenge to providing health care services to people living in our rural and frontier areas. Access to health insurance and finding a creative solution to address our shortage of health care workers is a topic of great importance to me.”

He also said, “Use of telehealth technologies is not a new concept to Nevada, in fact some providers already have well established systems, I’ve been able to view several of those systems, had demonstrations of those systems …”

Telehealth also allows the practice of preventative medicine and could reduce the need for expensive emergency room visits.

“The intent of this legislation is to fully capitalize on opportunities which existing technology provides in order to expand health care to all Nevadans,” Oscarson testified.

Some insurance company co-pays for telehealth are less expensive than for an in-person visit, Oscarson noted, adding that the market should set the price of care.

AB292 has the potential to save countless hours and considerable amounts of money, perhaps even lives. We urge the Legislature to pass this vital piece of legislation.

A version of this editorial appears this week in 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.