Mining attorney asks justices to keep tax question off ballot

An attorney for the mining industry asked the Nevada Supreme Court on Monday to keep off the November ballot a question that seeks to raise significantly the taxes the industry pays, saying the measure's passage would undermine the Legislature.

"The people can't command the government to enact a law," said Las Vegas lawyer Bradley Scott Schrager, who represents the Nevada Mining Association.

"This devolves into a question of common sense," countered initiative backers' attorney Don Springmeyer, who said industry arguments regarding the process were better heard after the election, not before.

"Ninety-eight percent of their District Court argument, they hardly brought up the issue of command of the Legislature," Springmeyer said.

Justice Mark Gibbons said the industry was permitted to argue the issue because the initiative process was discussed at the lower court of Carson City District Judge James Wilson, who in March ruled the signature petition could move forward.

Springmeyer, who represents Robert Fulkerson and several other people and agencies, said there were no procedural flaws. Fulkerson is director of the Progressive Leadership Alliance of Nevada, an umbrella advocacy organization that represents more than 40 liberal-leaning groups in Nevada.

Schrager said the people's right to ballot initiatives, referenda and other means to engage the system are on a "co-equal" basis with elected lawmakers, and that such initiative questions must be debated by the Legislature.

He said that forcing the Legislature to change the mining's tax formula from 5 percent of net profits to 5 percent of gross profits without debate was too specific for a ballot question and that such action gave neither lawmakers nor voters a clear picture of what the effect would be on the industry and, ultimately, state coffers.

"How do we avoid the slippery slope that all initiative petitions would be ineligible for the ballot?" Justice James Hardesty asked.

Schrager said the key difference with the call for higher mining taxes -- seen by many as a potential economic lifeline because of the high price of gold during the worst economic downturn since the Great Depression -- is that lawmakers deliberate other initiatives and study issues such as financial impact and constitutionality.

With gold prices at more than $1,230 a troy ounce on Monday, up about 100 percent over five years after a long period of low prices, proponents think it is time to change the General Mining Law enacted more than 140 years ago to encourage mining.

The mining industry argues the cost of mining has increased just as dramatically over the same time frame.

Hardesty asked Schrager whether the question was identical to the ballot initiative that requires a two-thirds supermajority in both houses of the state Legislature to raise taxes that passed in 1996. "No. They (the Legislature) deliberated," he said. "The law says the Legislature has to deliberate. The Legislature is a contentious place."

Springmeyer reminded justices the ballot question, by itself, does not compel lawmakers to raise mining taxes; it gives them approval to vote on the issue. "This is not impermissible," he said.

Because two subsequent votes are required to amend the Nevada Constitution, voters would have to pass the law for a second time in the 2012 election to make it state law.

Each of the state's county clerks must certify the signatures as registered Nevada voters. The deadline to submit the initiative to the secretary of state in time to be on the ballot is June 15.

Contact reporter Doug McMurdo at dmcmurdo@reviewjournal.com or 702-224-5512 or read more courts coverage at lvlegalnews.com.