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Criminal Justice | State Government

Rural counties move to sue Legislature over proposed mining tax constitutional changes

The Assembly on Tuesday, Aug. 4, 2020 during the fifth day of the 32nd Special Session of the Legislature in Carson City. (David Calvert/The Nevada Independent)

A rural Nevada county has filed a lawsuit challenging the state Legislature’s decision to pass three potential constitutional changes to mining taxes approved during the late summer special session.

The lawsuit, filed on behalf of Lander County in Carson City District Court in early September, challenges the trio of proposed constitutional amendments raising the state’s 5 percent cap on the net proceeds of mineral taxes set in the state Constitution. Members of the Elko County Commission discussed joining the lawsuit or bringing other legal action on Thursday.

In the lawsuit, attorneys for Lander County claim that passing the resolutions to amend the constitution during a special legislative session without explicit instruction from the governor (who issued the special session call and didn’t include mining taxes on the agenda) was a “fatally procedurally flawed” process that violated the intent of the process to amend the state Constitution.

“Given the foregoing, the Nevada Legislature bypassed the first constitutional hurdle to amending the Nevada Constitution in a rush and restricted proceeding on matter outside the scope of the business identified in the Proclamation and without allowing real and meaningful input from affected parties or the public at large given the restrictions placed on the Special Session due to COVID 19,” attorneys for the county wrote in the lawsuit.

The lawsuit asks the court to enjoin the Legislature from bringing up any of the three resolutions during the 2021 legislative session, and to declare that the three resolutions are “null and void.”

It’s the first legal action brought against the proposals since they were passed out the nearly week-long late summer 2020 special session, each of which were voted out on mostly party-line votes and are expected to bring in tens of millions of dollars worth of additional tax revenue if approved. 

Progressive groups have long sought increased taxation on the mining industry, saying the constitutional 5 percent cap on net proceeds unfairly sheltered the industry from paying its fair share; rural and Republican lawmakers say Democrats ramrodded the resolutions and that any mining tax increase could drastically threaten rural economies.

Although Gov. Steve Sisolak’s proclamation for the special session did not mention mining taxes, lawmakers relied on an opinion from Legislative Counsel Bureau General Counsel Kevin Powers stating that the constitution only limited lawmakers to considering bills during special sessions called by the governor. As potential constitutional amendments are introduced by resolution, Powers said, there are no limits to introducing them during a special legislative session.

Lawmakers moved quickly to pass the resolutions in order to bypass the normal five year waiting time for constitutional amendments originating from the Legislature, which requires passage in two subsequent legislative sessions and then approval by votes in the next election. That way, the resolutions could come up for a vote as early as the 2022 election.

Members of the Legislative Commission, an interim panel of lawmakers that takes action on behalf of the Legislature when it’s not in session, voted 8-4 on Friday to authorize attorneys with the Legislative Counsel Bureau to intervene in the lawsuit. Republican Assemblyman Tom Roberts joined the Democrats in making the motion; all other Republicans on the committee voted in opposition.

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