Allowing digging near the proposed Thacker Pass lithium mine would cause irreparable harm to Indigenous communities in the Great Basin, attorneys for the Reno-Sparks Indian Colony, Burns Paiute Tribe and the People of Red Mountain told a federal District Court judge on Friday.
The tribal governments and members of the Fort McDermitt Paiute and Shoshone Tribe asked federal District Court Judge Miranda Du to issue a preliminary injunction. Such a ruling could halt ground disturbance as the court weighs the merits of the case. At issue is whether federal regulators improperly fast-tracked an environmental review for the closely-watched lithium mine.
In January, federal regulators with the U.S. Bureau of Land Management approved the Thacker Pass mine. The mine, including an open pit and processing facilities, is expected to span more than 5,000 acres of public land north of Winnemucca at the base of the Montana Mountains.
In a national push to secure more lithium and transition away from fossil fuels, it is one of several projects seeking a green-light from regulators. Yet the project has drawn opposition and concerns from Native American tribes in the Great Basin, environmentalists and local ranching operations adjacent to the mine site, all wary of long-term effects on their communities.
Earlier this year, four environmental groups challenged the federal government’s environmental review of the project, as did a local rancher, Edward Bartell. Their separate cases have now been consolidated into one case. Over the past month, the court also allowed the Reno-Sparks Indian Colony, the People of Red Mountain and the Burns Paiute Tribe to join as plaintiffs.
Atsa koodakuh wyh Nuwu, or the People of Red Mountain, comprise a group of tribal members from the Fort McDermitt Paiute and Shoshone Tribe who consider Thacker Pass to be sacred, as the site of a massacre, a place to perform ceremonies and an important area for hunting.
A ruling on the merits of the case is not expected for several months, and the company developing the mine, Lithium Nevada, has said in court documents that it does not plan to start construction until early 2022. The company is, however, seeking to start archaeological excavations.
Within weeks, federal land managers could issue a permit under the Archaeological Resources Protection Act to allow the company to conduct surveys of historic artifacts in the area. Those surveys are expected to involve trenching and digging in a limited area. Will Falk, an attorney for the plaintiffs, wrote in a brief that “digging these trenches and holes is likely to destroy artifacts and human remains.”
In court on Friday, he said his clients were not consulted on plans to survey historic artifacts, and they have serious concerns about how discovered artifacts would be handled and stored.
“In my clients’ view, it's like those artifacts are being stolen from them,” Falk said.
The federal government has argued that it made a good-faith and reasonable effort to consult with nearby tribes, including the Fort McDermitt Paiute and Shoshone Tribe, the Summit Lake Paiute Tribe and the Winnemucca Indian Colony. But an attorney for the Burns Paiute Tribe in Oregon said federal land managers erred by not consulting with other tribes connected to the land.
The attorney, Rick Eichstaedt, said consultation is “an affirmative duty” for the agency.
Arwyn Carroll, a lawyer for the federal government, said federal land managers followed the required process, relying on regional land planning documents and past communications about what projects should trigger a formal government-to-government consultation. Carroll added that the tribal governments, including the plaintiffs, are now being consulted on the archeological permit.
"Consultation is still ongoing,” she said.
Du said she planned to issue a written ruling on the request for an injunction. Last month, Du declined to enjoin the activities based on different arguments from the environmental groups.
Falk, the attorney for the Reno-Sparks Indian Colony and the People of Red Mountain, has also helped organize an encampment at the mine site. Protesters at the encampment have said that they are prepared to take direct action to prevent any ground disturbance at the project site.
Lithium Nevada’s attorney, Laura Granier, told the court that the disturbance contemplated in the planned archeological surveys is small compared to the land disturbance that has already taken place in the area, including drill holes, the construction of a well and a transmission line.
Granier said that any work, moving forward, would still be regulated under federal statutes, including the National American Graves Protection and Repatriation Act. “If there is an unanticipated discovery or the discovery of human remains,” Granier told the court, “all work halts.”
A federal judge has denied initial efforts by a pro-firearms organization to block enactment of a recently passed law banning the sale and production of so-called ‘ghost guns,’ including homemade firearms or assembled firearms without a serial number.
Judge Miranda Du’s opinion issued on Monday found that arguments made by the Delaware-based Firearms Policy Coalition and several individual gun owners in the lawsuit failed to meet the high burden required for the court to block implementation of the new law.
The ruling is a win for legislative Democrats and gun control advocates who viewed passage of the bill, AB286, as one of the most prominent gun violence prevention measures adopted by the 2021 Legislature.
In the order, Du rejected the two prongs of Firearms Policy Coalition’s argument — that the law burdened Second Amendment rights to firearm ownership and constituted a violation of the Constitution’s Takings Clause, which generally sets limits on the government’s ability to seize private property for public use without just compensation.
“Because AB 286 targets only unserialized firearms that are not within a categorical exception, that bypass background checks by virtue of self-assembly, and that are untraceable without a serial number, the Court finds that AB 286 is a reasonable fit for achieving the government’s objectives of decreasing the threat that unserialized firearms pose to public safety and preserving law enforcement’s ability to trace firearms related to violent crimes,” the order stated.
The bill, AB286, was sponsored by Assemblywoman Sandra Jauregui (D-Las Vegas) and was approved on straight-party line votes in the Assembly and Senate.
It generally prohibits a person from possessing, purchasing, transporting or receiving any unfinished frame or receiver of a firearm, or assembling any firearm not imprinted with a serial number. A person found violating those provisions once the bill takes effect next year will be guilty of a gross misdemeanor, with repeat offenses punishable as a Category D felony.
The measure allows for some exemptions, including for a person who is a licensed firearms importer or manufacturer, who is part of a law enforcement agency, or if the unfinished frame or receiver has already been imprinted with a serial number. It would also exempt any firearm that has been rendered permanently inoperable or is considered an antique or a collector’s item.
Advocates of the measure said it would help stem a rising tide of untraceable homemade ‘ghost guns’ — the Bureau of Alcohol, Tobacco and Firearms estimated that law enforcement nationally collected roughly 10,000 such firearms in 2019. Still, Clark County Sheriff and Republican gubernatorial candidate Joe Lombardo said at a recent forum that the state’s largest police force only tracked six instances of homemade, non-serialized firearms over the past 12 months — adding that none of the firearms were used in a crime, and most were found in the Las Vegas Strip corridor.
But only three days after Gov. Steve Sisolak, a Democrat, signed the bill into law in early June, the Firearms Policy Coalition filed a lawsuit challenging the bill as unconstitutional. FPC spokesman Adam Kraut said in a statement at the time that the bill “violates Nevadans’ Second Amendment rights and unlawfully deprives them of their property, in violation of the Constitution.”
“In order for a law-abiding individual to exercise their Second Amendment rights, they must have the ability to possess firearms, including those they build themselves,” Kraut said in a statement in June.
In her order, Du (who was nominated to the federal bench by then-President Obama in 2012) found that the language in AB286 did not constitute a Second Amendment violation because individual gun owners could still purchase and use fully furnished firearms or firearm assembly kits as long as they come equipped with a serial number — finding the law “does not severely burden Second Amendment protected conduct, but merely regulates it.”
Du also did not find merit in FPC’s arguments that the measure would constitute an unconstitutional “taking” prohibited by the Fifth Amendment, saying the measure does not “deny all economically beneficial or productive use of unserialized firearms” because it only affects the sale or production of such products inside state lines.
“While the Court is sympathetic to the economic loss Plaintiffs assert, it is not clear based on the record the extent or certainty of that economic loss,” the order states. “Because AB 286 provides an approximate 10-month period for persons to sell unserialized firearms and constituent parts to firearms importers, manufacturers, or licensed dealers beginning June 7, 2021, the possibility of recouping a potential economic loss was — and remains as of the date of this order — possible.”
Du also wrote that the stated intent of the new legislation — public safety — could be considered a “valid exercise of the government’s police power,” adding that “public safety and the importance of firearm tracing necessitates the prohibition of Individual Plaintiffs’ unserialized firearms and constituent parts at issue, and thus not a taking.”
In a statement, FPC called the decision “misguided” and promised a review and potential appeal. “Today's order is wrong as a matter of law and reduces the fundamental human right to keep and bear arms to a mere privilege,” the organization said in an email. “FPC's appellate counsel are reviewing this horribly flawed order and are authorized [to] take any and all appropriate actions to protect the Second Amendment rights of Nevada residents.”
In front of a federal courthouse in downtown Reno on Wednesday morning, more than 50 people from Indigenous groups across the state gathered in a peaceful protest against the proposed Thacker Pass lithium mine north of Winnemucca. Protesters waved signs at cars driving by.
Their message to those inside the eighth-floor courtroom was clear: “Protect Thacker Pass.” “Consultation is NOT Consent.” “Fort McDermitt Tribal Descendants Against Lithium Nevada.”
U.S. District Court Judge Miranda Du’s courtroom was filled on Wednesday with Indigenous activists, environmentalists and employees for Lithium Nevada, the company developing the mine. Company shareholders joined through a phone line.
It was an important hearing for a lithium project at the center of an energy transition away from fossil fuels and toward electrification. Since federal land managers approved the mine in the final days of the Trump administration, it has drawn scrutiny from Native American tribes in the Great Basin, environmental groups and the rural communities that would surround the mine.
The hearing stemmed from a lawsuit, filed by four environmental groups in February. In their suit, the groups challenged the government’s approval of the mine, arguing that the U.S. Bureau of Land Management fast-tracked a key environmental review and did not fully weigh the mine’s impacts. Now they are asking the court to halt mine-related activities until the issue is settled.
At issue on Wednesday was whether the court should grant an injunction — an order that would stop impending archeological digging at the mine site — as litigation proceeds.
As early as next Thursday, July 29, federal land managers had been expected to give Lithium Nevada permission to begin trenching and digging as part of a Historic Properties Treatment Plan to collect and catalogue artifacts. In court filings, the company argued that the work is a prerequisite to installing the water and power lines needed to begin construction in early 2022.
Last week, tribal descendents of the Fort McDermitt Paiute and Shoshone Tribe, which is near the mine, held a protest at the Carson City headquarters of Lithium Nevada’s archeological contractor. The group of tribal members, Atsa koodakuh wyh Nuwu, or the People of Red Mountain, left a letter on the contractor’s door and asked to meet with the company.
Talasi Brooks, an attorney representing the environmental groups, said that excavation activities would cause an “irreparable harm” to the winter habitat for Greater sage-grouse, a sensitive bird species that relies on sagebrush, quiet places, and faces multiple threats in the Great Basin.
“There will likely be more sage-grouse mortality because of this habitat destruction,” argued Brooks, a staff attorney for the Western Watersheds Project, one of the plaintiffs in the case.
The public interest, she argued, leaned toward granting an injunction that Brooks said would only cause the mining company a “temporary delay,” even if the court ultimately upholds the environmental review.
But attorneys for the U.S. Bureau of Land Management, an agency within the Department of the Interior, and Lithium Nevada argued that the threats that sage-grouse faced from the excavation were overstated. The company said in a declaration that excavation would disturb only a small area, about 0.36 acres, compared to existing ground disturbance on about 56 acres of land.
Laura Granier, an attorney representing Lithium Nevada, said “the delay creates uncertainty.” Granier said such an injunction would cause substantial harm to a company and project that, she argued, is critical for the local economy and the country’s efforts to tackle climate change.
The judge, who peppered the attorneys with questions about substantive and procedural claims, plans to rule on the injunction by July 29. But that date is now important for another reason: A new motion could bring additional arguments into the courtroom.
The day before the hearing, the Reno-Sparks Indian Colony and tribal members from the Fort McDermitt Paiute and Shoshone Tribe filed a motion to intervene as a plaintiff on the side of the environmental groups. They argue that federal land managers, in approving the mine, violated provisions of the National Historic Preservation Act that require input from tribes and the public.
The Reno-Sparks Indian Colony, the motion notes, “attaches cultural and religious significance to historic properties that will be affected by the Thacker Pass Lithium Mine Project.” The claims in the motion also represent the People of Red Mountain, who consider Thacker Pass sacred, the site of a massacre and a hiding spot when soldiers forced their ancestors onto reservations.
In a brief filed yesterday, lawyers for the groups seeking to intervene in the case said the People of Red Mountain “preserve and pass on oral histories about Thacker Pass (“Peehee mu’huh”), regularly perform ceremonies in Peehee mu’huh, hunt and gather in Peehee mu’huh, plan on performing ceremony, hunting, and gathering in Peehee mu’huh in the future, and are concerned with the Project’s effects on historic properties located within its footprint.
The Fort McDermitt Paiute and Shoshone Tribe’s council has not filed a motion to intervene.
Du did not hear arguments about the motion on Wednesday. But she approved an expedited process for moving forward.Du plans to decide on the motion to intervene by July 29. If the motion is granted, the Indigenous groups will also be permitted to seek an injunction.
The judge requested that the U.S. Bureau of Land Management wait until the motions are resolved before allowing the excavation work to begin. A lawyer for the agency, Arwyn Carroll, had, earlier in the hearing, indicated that work would not begin by July 29, as previously suggested in a court document. The agency is still working on permitting the excavation work, and Carroll said consultation with the Fort McDermitt Paiute and Shoshone Tribe is ongoing.
“It certainly won’t happen before next Thursday,” Carroll said.
The agency, however, did not commit to a timeline during the hearing. If an injunction is not issued, protesters have said they are prepared to take direct action. Protect Thacker Pass, a protest group camped at the site, had planned to conduct direct action training this weekend.
As for the underlying issues in the case, the judge heard a preview of arguments that are likely to come. Arguments in the case could revolve around the 1872 Mining Law, which opened up federal land to mining. Roger Flynn, a lawyer for the environmental groups and a director of the Western Mining Action Project, clashed with Granier over their interpretation of the law.
Both lawyers cited recent cases, including the Rosemont copper mine case in Arizona, that deal directly with the 1872 law. Those cases are working their way through the federal court system.
Nevada Independent photojournalist David Calvert contributed to this report.
Here’s what else I’m watching this week:
Acting state engineer appointed to the position: Adam Sullivan, the acting state engineer, will serve in the position, the Department of Conservation and Natural Resources announced this week. Sullivan has worked on Nevada water issues for more than two decades and with the state agency since 2009. The Associated Press has more.
Those who watch the Colorado River spend a lot of time watching Lake Mead. But Lake Powell, the reservoir just upstream, is also an important indicator. Within the next few days, Lake Powell could reach its lowest level since it was filled, KUNC’s Luke Runyon reported.
I missed this last week, but the State Land Use Advisory Council approved a letter supporting a smart-from-the-start approachto renewable development. The letter comes as more and more conflicts arise between siting renewable energy (solar, etc…) and other uses of the land.
On a not unrelated note, Clark County has a draft of its first Master Planupdate since the 1980s. Yes, you read that right. The 1980s. These are the technical administrative processes that might not get the big headlines, but these plans often dictate planning for many decades.
Caltech is paying damages after a scientist drilled at a petroglyph site on federal land near Bishop, California. Louis Sahagún from the Los Angeles Timeshas more on the story.
“The Utah Rivers Council and ten other Colorado River Basin organizations have requested a federal investigation into the use of federal funds by the Central Utah Water Conservancy District, or CUWCD,” the Salt Lake Tribune’s Owen Tucker-Smith reported.
Behind the Bar is TheNevada Independent’s newsletter devoted to comprehensive and accessible coverage of the 2021 Legislature.
In this edition: Where the lawsuit seeking to open the Legislative building to the public stands after a 9th Circuit Court dismissal. Plus, details on a bill allowing tiny house development, an icy reception for the organ donation opt-out bill, advancing a state-based Equal Rights Amendment, and changes to tribal burial site laws. Carson City Restaurant Spotlight returns.
Check this link to manage your newsletter subscriptions. The newsletter is published on Mondays and Thursdays.
I want to hear from you! Questions, comments, observations, jokes, what you think we should be covering or paying attention to. Email me at firstname.lastname@example.org.
The legal effort to open the halls of the Legislature to the public isn’t going so well.
The order was brief — just five lines — and echoed what defendants in the case have said all along: the appeal was inappropriate because it was focused on a non-appealable interlocutory order, which is legal jargon for the procedural order issued by the federal District Court judge in the case.
The appeal in this case focused on Judge Miranda Du’s order setting a normal and non-emergency briefing schedule in the case — a decision made because the plaintiffs (the four lobbyists) didn’t check all of the boxes needed to qualify for an emergency briefing.
A filing submitted by Deputy Solicitor General Craig Newby to the 9th Circuit outlines where the initial lawsuit fell short in providing information typically required for an emergency, expedited briefing. It also seeks to have Gov. Steve Sisolak and Attorney General Aaron Ford — named defendants in the lawsuit — dismissed from the case, because, well, the executive and legislative are separate branches of government (the response helpfully links to a Schoolhouse Rock video in a footnote).
“Unlike other cases brought by Plaintiffs’ counsel, there is no emergency directive issued by the Governor mandating that the Legislature close (or open) the Legislative Building,” Newby wrote in a separate filing submitted to the district court. “The Governor understands the risks of COVID-19 spread in our community, resulting in difficult decisions he has had to make. Here however, the difficult decisions for keeping the Legislative Building open or closed lie with the Legislature, not him.”
I’m not an attorney, but I would guess that barring some kind of Hail Mary appeal to the U.S. Supreme Court, the case will fall back to the original District Court.
But even then, the lawsuit still has issues.
In a filing submitted on Tuesday, Legislative Counsel Bureau General Counsel Kevin Powers told the court that the plaintiffs had “ failed to serve the Legislative Defendants, or an agent designated by them to receive service of process, with the summons and complaint.”
“In the absence of such service, the Legislative Defendants have not officially become parties to this action, and this Court cannot exercise personal jurisdiction over the Legislative Defendants for any matters, including, without limitation, the emergency motion for preliminary injunction,” Powers wrote in the motion, which asked the court to pause all briefings in light of the then-pending appeal with the 9th Circuit Court.
If you made it through all that legalese and are still reading, 1) congratulations, 2) now you know what it’s like to live in my brain and 3) you’re probably wondering where exactly this leaves the lawsuit and potential of a judicial-ordered reopening of the legislative building.
Again, not a lawyer, but I think there’s certainly a case to be made that an expedited briefing is appropriate in this case — we’re already a third of the way into the 120-day legislative session.
But that ticking clock also works against the litigation — legislators and staff got their first COVID vaccine shot last month, and legislative leadership are still targeting mid-April for a tentative, limited reopening date.
As that tentative date gets closer, I think it makes it less likely that a judge would feel inclined to issue an emergency injunction to open the building, especially if the limited reopening is just a few weeks away.
But I’ll continue to follow the court case regardless; if there’s one lesson I’ve learned, it’s that making predictions in this business should be left to the supremely confident or foolhardy.
— Riley Snyder
More options for tiny houses in Nevada
Sen. Dallas Harris (D-Las Vegas) is the latest supporter of a housing movement that began when Henry David Thoreau rejected society and moved into a 150-square foot cabin near Walden Pond outside of Concord, Massachusetts.
Though Harris has not committed to a solitary existence in a small cabin near a pond, nor the modern-day option of applying for the popular television series Tiny House Nation, she did say that allowing more tiny homes to be built in Nevada could help address the state’s housing shortage.
"This is something I personally would choose to live in and maybe build as a permanent residence because of who I am and my own personal tastes," Harris said during a Senate Government Affairs committee hearing on the bill SB150 on Monday. "What I'm looking to do here is to allow those who like to build one ... or who would like to put it in their backyard, I would like to give them the option."
Under Harris' proposed bill, municipalities in counties with more than 800,000 people would have to create zoning laws for tiny houses no more than 400 square feet in size that would:
allow homeowners to build tiny houses as an addition to a property
recognize tiny homes as single-family dwelling units
set aside space for tiny house parks similar to mobile home parks.
Counties with 100,000 residents or less would follow through with at least one of the three options, Harris said.
The bill addresses a need for specificity around zoning for tiny houses which are often a smaller square footage than what is normally permitted for single-family residences and sets up a regulatory structure for the housing type, supporters said.
But one skeptic of the bill, Sen. Dina Neal (D-North Las Vegas), worried tiny homes might depreciate housing values or exacerbate zoning disparities.
"I'm not a fan of tiny houses, mainly because I don't want it to go into poor areas. And I don't want it to go into poor areas that I want redevelopment to occur and actually have sustainable homes, good homes ... the American Dream home " she said.
Harris chalked up Neal's comments to a difference in philosophies. She said the legislation would provide an alternative for people who may not be able to find or afford a larger home and a way to increase density in more established communities.
"I also see [tiny homes] as a stepping stone to larger home ownership in that American Dream sense," Harris said.
— Tabitha Mueller
Proposed opt-out organ donation system gets icy reception
Critics of a new bill that would make Nevada the first state with an opt-out organ donation system are concerned that the new method would infringe on personal liberties and might even reduce the state’s donor pool.
The bill, SB134, would adjust the current opt-in system by making Nevadans who update or apply for a new driver's license or state ID card organ donors by default. If the bill is passed, someone filling out a DMV application would have to opt out of becoming an organ donor instead of opting in.
“I'm afraid that Nevada Donor Network has a very deep concern that an opt-out system is likely to have unintended negative consequences that would actually result in decreasing the availability of organs and tissues,” said lobbyist Dan Musgrove, a representative for the non-profit organ procurement organization, during a Monday hearing of the bill.
Musgrove explained that the opt-out system could create conflict with the Uniform Anatomical Gift Act, which sets a regulatory framework for organ donation across different states. And he said the system could pose a problem by creating a group of people who decide to not be organ donors and remove themselves from the donor pool.
The main presenter of the bill, Ashley Biehl, a 30-year-old who had a heart transplant in 2017, pointed to the thousands of Americans who die each year waiting for a transplant, as well as Nevada’s “abysmal” rate of organ donor registration, which at 41 percent sits below the national average of 49 percent.
“Senate Bill 134 seeks to help alleviate that burden and reduce the number of unnecessary deaths by making more organs eligible for donation,” Biehl said.
Those who opposed the bill during the meeting, as well as some of the lawmakers on the Senate Growth and Infrastructure Committee, expressed concerns that a change to the organ donation system could infringe on individual rights.
“The general consensus has been over the years that government can't make choices over our bodies, over our personal opinions. And yet, this would seem to do violence to that concept,” Sen. Keith Pickard (R-Henderson) said during the hearing.
Sen. Scott Hammond (R-Las Vegas) also said the change to an opt-out system could potentially confuse people. Hammond said that someone could miss the change to the system and become an organ donor, even though they do not actually want to be one.
The bill’s sponsor, Sen. James Ohrenschall (D-Las Vegas), said during the meeting that he would continue to work with stakeholders to address concerns about the bill language.
“Certainly the intent of this bill is to make a bold statement that Nevada would be the first opt-out state in the nation,” Ohrenschall said. “There is no intent to replace anyone's conscious decision as to whether they want to participate or not.”
— Sean Golonka
Nevada Equal Rights Amendment moving on to the next round
The Nevada Equal Rights Amendment is one step closer to the 2022 ballot, after the resolution passed out of committee with a 4-1 vote on Tuesday.
The Senate Legislative Operations and Elections Committee passed the resolution, SJR8, that would amend the Nevada Constitution to include that rights shall not be denied or abridged “on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.” It echoes language from the federal Equal Rights Amendment, which Nevada ratified (35 years after the fact) in 2017.
Sen. Carrie Buck (R-Las Vegas) was the sole vote opposing the resolution. She argued that the bill is “redundant” as it lays out equality and protection to multiple groups that the federal and state constitutions already protect. She also said the resolution’s list of specific groups of citizens is “bound to miss some.”
“I believe in the rights of all people… I embrace those voices and the narratives behind those who have said ‘enough is enough,’ they are equal and I am equal with them,” Buck said. “I just cannot in good conscience support a bill that has the potential to harm, exclude or potentially forget a subgroup of people who were left off the list.”
This is the proposed constitutional amendment’s second round of approval after being passed during the 2019 legislative session. If approved by the full Legislature, the resolution goes to a statewide vote in 2022.
The committee vote comes after a setback for a national movement to add the ERA to the U.S. Constitution. A judge ruled last week that the effort could not advance, even though Nevada and two other states recently ratified the proposed amendment, because a 1982 deadline set by Congress has passed.
Democratic Attorney General Aaron Ford said he is exploring further legal options, and Sen. Pat Spearman (D-North Las Vegas) said she would continue the fight.
“There have been a long list of people who have been fighting for this, hoping for this, and praying for this,” said Spearman, who led the charge to have Nevada ratify the national amendment. “We are the hope. We are an answered prayer. We are the continuation of their work. We will not stop until the work is finished, and it will not be finished until the Equal Rights Amendment becomes the 28th amendment in our U.S. Constitution.”
— Jannelle Calderon
Bill amends law that protects Native American burial sites
It’s illegal in Nevada to knowingly excavate an Indian burial site, which has been the case since 2017.
But the current law exempts entities engaged in lawful activity, such as construction, mining and ranching, from obtaining permits from the State Museum so long as the purpose of the activity is exclusive from excavating a burial site.
Nevada lawmakers are looking to clear up any ambiguities in the law through AB103, which seeks to clarify that the activity in question can only occur on the portion of the private land that does not contain the known burial site.
“It got interpreted that there was an exemption,” said Marla McDade Williams of the Reno-Sparks Indian Colony during the bill’s presentation in the Assembly Natural Resources committee on Monday. “So this legislation in front of you simply makes that clarification to say that as long as the activity occurs only on a portion of the private land that does not contain the known site, then they don't have to get the permit.”
Although the bill doesn’t significantly change the scope of the existing law, it brought an important conversation to the Legislature regarding the presence of Native American peoples who lived, died and were buried throughout the state before other populations settled here.
“The core theme of AB103 is to ensure protection of our ancestors' final resting place where they were originally buried, and to ensure Nevada tribes are part of the discussions and decisions made affecting the management, treatment and disposition of Native American ancestral human remains,” said Michon Eben, manager for the Reno-Sparks Indian Colony cultural resource program.
Eben said that just as any other human remains are respected as they lay within cemeteries, so too do Native American remains throughout the state need to be respected and remain undisturbed.
“Native American remains and sacred objects were desecrated by early pioneers and settlers, but what remains buried throughout the state is still important to contemporary Native society,” Eben said.
While many areas are not necessarily marked as burial sites, the law holds that landowners who find remains (called “inadvertent findings”) must notify the State Historic Preservation Office, which then catalogs the findings into a database of known findings. The database is not publicly accessible.
Eben also clarified that while the law currently protects Native American remains, it does not protect Native American cultural items or objects found across the state, adding that this is something “we’d like to change in the future.”
— Jazmin Orozco Rodriguez
Carson City Restaurant Spotlight: Antojitos la Jefa
I thought it was a pretty good sign when the woman answering the phone to take my order at Antojitos la Jefa did so in Spanish.
And it was another good sign (although a little nerve-wracking for this half-vaccinated restaurant critic) that this cozy joint on Carson Street was positively hopping on a Friday night.
Antojitos la Jefa is one of the newest restaurants in town, replacing what used to be a sushi joint sandwiched between the FISH thrift store and O’Reilly Auto Parts. Loosely translated, the name is “Snacks from the Girl Boss.”
I ordered a gordita with asada and all the fixins and a “pambazo” al pastor — an item I’d never heard of but that entailed a guajillo sauce-treated sandwich roll filled with all the tasty pork taco fixings you’d otherwise find on a tortilla. It was all quite delicious, particularly after watching the tortillas made by hand just behind the counter.
If you miss Tacos El Gordo in Vegas, this place can fill the void in your heart. And at less than $20 out the door for two entrees plus beans, rice and a few chips, it won’t leave much of a void in your wallet.
Antojitos la Jefa is located at 1701 North Carson Street. Open until 9 p.m. Order your takeout in English or Spanish at (775) 461-0771.
Have a restaurant suggestion for the Spotlight? Tell me at email@example.com. FYI: We’re not accepting free food in order to preserve the integrity of the reviews.
What we’re reading:
Daniel Rothberg and Joey Lovato’s must-read interview with Blockchains CEO Jeff Berns, who wants to build a 36,000-person, self-governing, blockchain-run “Innovation Zone.” (Berns: “I don’t know yet how we’re going to raise money.”)
The Guinn Center does its best Dina Titus impression and finds that Nevada is still on the bottom of the good list of states that receive the most federal grants.
A state of play on where state worker collective bargaining contracts stand.
We also report on Sen. Chris Brook’s big energy policy plans for the 2021 session; $100 million for electric vehicle charging stations, potentially moving the state to a wholesale electric market, expanding renewable energy tax credits, calling for more transmission infrastructure build-out, and prison sentences for Hummer owners after 2025 (one of those may not be true).
A provision in the recently-passed federal defense bill could shine more light on company transparency — and possibly affect the millions of dollars in registration fees that Nevada makes on being a haven for “shell” companies. (Reno Gazette-Journal)
A bipartisan group of 17 female lawmakers are sponsoring a bill to focus the state’s Maternal Mortality Review Committee to focus on “disparities among persons of color, geographic region and age.” (Nevada Current)
Las Vegas Justice of the Peace Melanie Tobiasson filed a federal civil rights lawsuit accusing the state’s judicial commission of conspiring to ruin her reputation after she criticized officials including Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson. (Nevada Current)
Behind the Bar is TheNevada Independent’s newsletter devoted to comprehensive and accessible coverage of the 2021 Legislature.
In this edition: Can either Assemblywoman Annie Black or a federal lawsuit open the Legislature to the public? Plus, details on a bill to pay inmates the minimum wage, a proposed esports commission and legislative Democrats’ plan to offset educational losses during a year of COVID. Carson City Restaurant Spotlight makes a triumphant return.
Check this link to manage your newsletter subscriptions. The newsletter is published on Mondays and Thursdays.
I want to hear from you! Questions, comments, observations, jokes, what you think we should be covering or paying attention to. Email me at firstname.lastname@example.org.
The effort to reopen the doors of the Legislature to the public has finally moved beyond rhetoric and press releases.
After giving a floor speech denouncing the continued closure of the building on Tuesday, Assemblywoman Annie Black (R-Mesquite) made a motion on the Assembly floor to “open the Legislative Building under the same safety procedures of Walmart, bars, casinos and other businesses.”
After a short recess to discuss legislative rules, the motion wasn’t recognized — the motion came under the wrong order of business (“Remarks from the Floor” and not “Motions, Resolutions and Notices”). Speaker Pro Tempore Steve Yeager (D-Las Vegas) told my colleague Michelle Rindels after the session on Tuesday that it was an “inappropriate motion.”
Black nonetheless wrote in her newsletter that she plans to bring up similar motions during floor sessions. But Black — a freshman in the minority party who opted to not join the Assembly Republican Caucus — has relatively few cards to play under Assembly procedural rules.
In essence, there’s no realistic pathway for a motion like the one Black brought to pass unless she’s able to get the support of a majority of the Assembly — an impossible task in the Democratic-controlled body. If she’s able to get her procedural ducks in a row, make the motion at the right time and is recognized by the Assembly speaker, Black could in theory force a roll call vote related to the building’s closure.
Such a vote would likely be on a motion to table Black’s initial motion, so not a direct vote on opening the building. It’d also default to a voice vote, but she’d need support from only two colleagues to force a roll call vote (fellow Republicans Jim Wheeler (R-Minden) and John Ellison (R-Elko) spoke in favor of her motion on Tuesday).
Even if all the pieces fall into place and a roll call vote is taken, any victory would be symbolic — I don’t think any Assembly Democrats would publicly move away from leadership’s position that a limited reopening should come in mid-April, after building staff are fully vaccinated.
Du issued a minute order (essentially a judge’s abbreviated decision that’s less formal than a written order) stating that the plaintiffs failed to request expedited briefing in their motion and “did not otherwise establish they are entitled to an expedited briefing schedule.”
The plaintiffs appealed that minute order to the 9th Circuit on Tuesday (you can read a copy of the filing here). It largely recaps arguments from the initial filing, and says that Du’s order on the expedited briefing schedule is inaccurate because the lawsuit was filed as an emergency motion and because there are only 90 or so days left in the legislative session.
A 9th Circuit clerk’s order (also filed on Wednesday) stated that the appeals court “may lack jurisdiction over this appeal” because the minute order filed by Du “does not appear to be a final or appealable order.” It ordered plaintiffs to either voluntarily dismiss the appeal or to show cause as to “why it should not be dismissed for lack of jurisdiction” sometime before March 8.
I’m not an attorney, and I haven’t owned a Magic 8 Ball since I was 9, so I’m hesitant to predict what the future might hold in terms of the timeline for re-opening the Legislative Building.
But I think actually kicking off the vaccinations for building staff, legislators and press last week (plus the mid-April tentative date for a limited re-opening) helps quell at least some of the concerns that I’ve seen and heard expressed about the plan, or lack thereof, to safely open the building while still protecting staff.
Addendum: This is the tenth edition of the newsletter that we’ve published, and we’re hovering around the 900-subscriber milestone. Thank you to everyone who continues to subscribe and read this newsletter every week. It’s listed at the top every week, but if you have any feedback or things you would like to see, please send me an email at email@example.com.
— Riley Snyder
Should inmates get paid minimum wage?
In December 2015, Darrell White fractured a finger bone while on the job as a firefighter for the state Division of Forestry, leaving him temporarily disabled for 144 days.
White filed a worker’s compensation claim, but there was a problem: His job came through an inmate work program hosted by the Nevada Department of Corrections, and his worker’s compensation amount was tied to the miniscule wage ($18 to $22 a month, or $0.50 a day) paid to inmate workers in the state.
White lost a court case in 2019 challenging his worker’s compensation amount, but the issue of state correctional institutions paying inmates subminimum wage has drawn national attention.
It’s why Sen. Dina Neal (D-Las Vegas) is sponsoring SB140, a bill that would require the Nevada Department of Corrections to pay inmate workers a salary equal to the state’s minimum wage, and change deduction programs to ensure that more dollars are given to inmates once released from prison. The bill was introduced last week and is scheduled for a hearing on Wednesday.
In an interview, Neal said that paying inmates less than the minimum wage was a counterintuitive policy — the state already pays millions of dollars to prepare and support inmates for reentry into society, but once released, inmates (especially those who previously worked for in a skilled industry) have to essentially start from scratch because their previous jobs in a prison industry paid so little.
“It doesn't make sense to push them out onto welfare, when they've worked for a private corporation inside the prison,” she said in an interview on Monday.
Nevada inmates work in both “regular jobs” and in “correctional industries,” which covers a wide variety of programs including sewing clothes, welding, horse raising, printing, sorting hangers and auto restoration. The state’s correctional industry program is called “Silver State Industries” and employs around 4 percent of the state prison population at any given time, or about 400 to 600 individuals.
Inmates employed in Silver State Industries can make anywhere from $0.25 to $5.15 an hour, according to a 2017 survey of inmate wages by Prison Policy Initiative.
The legislation would also eliminate all deductions currently taken out of incarcerated worker salaries, save for those required for familial support or restitution for victims. Any wages left over after those deductions would be placed in the newly-created “Offenders’ Release Fund,” which would house inmate income and distribute aggregate wages to inmates once released from prison.
Inmates employed through Silver State Industries remit a significant portion of their wages — nearly a quarter go to room and board, 5 percent goes to a statewide account to compensate victims of crime, and another 5 percent goes to a fund for capital projects to “house new or expanded Prison Industry programs.”
Neal said she expects pushback from the state Department of Corrections, as the remitted inmate wages help with the agency’s usual budget woes. The agency filed a fiscal note on the bill, saying it would require the agency to “significantly” increase pay to inmates, and that another portion of state law prohibits inmates from entering into normal employment contracts with the state prison system.
But Neal said the current system was too reminiscent of convict leasing — a post-slavery practice of forcing mostly-Black prisoners to work on railways, mines or plantations for no wages.
“Now, whether or not the bill gets passed out of committee. I mean, at least I have a hearing to discuss what I think is a legitimate issue on how we are not really serving (inmates),” she said.
— Riley Snyder
Getting Nevada’s students back on track
The pandemic and the move to virtual learning over the past year has led to an ongoing academic achievement gap that Democratic lawmakers hope to address through an education policy aimed at at-risk students.
Legislators unveiled details of the policy proposal, which will provide school districts with funding for summer school programs and other resources, during a virtual press conference on Wednesday afternoon.
"Learning loss because of the pandemic is a crisis that threatens to set many of our kids back with the potential of leaving behind a widened achievement gap," Sen. Marilyn Dondero Loop (D-Las Vegas) said. "If we don't work now to correct it, it will have implications for their educational development for years to come."
Under the "Back on Track Act," school districts would:
Create a learning loss prevention plan reviewed and approved by the Nevada Department of Education.
Set up virtual or in-person summer programs for students pre-K through 12th grade
Receive funding to provide educators and support staff, including mental health professionals, with supplemental pay.
Offer transportation and meal services for students in need.
Tameka Henry, the mother of two children attending schools in the Las Vegas area, said that her children have struggled with their studies and mental health throughout the pandemic.
"We cannot afford to leave one child behind," Henry said. "Parents should have the options at their disposal, as these summer schools, and other resources, especially counselors, and those dealing with our children's mental health. These should be free options that will help get us back on track."
— Tabitha Mueller
Could video games be Nevada’s latest pillar of economic development?
Sen. Ben Kieckhefer (R-Reno) has denied to this newsletter that he’s a gamer in real life.
But that’s not stopping the lawmaker from banking on large-scale “Fortnite” and “League of Legends” tournaments as a brave new world in Nevada economic development.
Kieckhefer’s bill, SB165, dropped Tuesday and would create a three-member Nevada Esports Commission. Duties would be something similar to those of the Nevada Athletic Commission that regulates boxing — Esports regulators would register events with purses larger than $1,000, enforce integrity of video game tournaments and even set drug-testing requirements for players.
It’s not a new idea for Nevada to explore the professional gaming realm. In 2016, then-Gov. Brian Sandoval entertained the idea and heard from professional “cyberathletes” during a meeting of his Nevada Gaming Policy Committee.
Kieckhefer said it may have been premature five years ago, but since then, Las Vegas has unveiled venues including the Hyperx Esports Arena. It’s a 30,000-foot, self-described “gamer’s paradise” at the Luxor complete with a “gamer-inspired” menu heavy on Red Bull cocktails to fuel those all-night LAN parties.
“They fill stadiums all over the world ... for big tournaments of $20, $30 million. So the prospect of bringing these types of events to Las Vegas, I think, is a no-brainer,” Kieckhefer said. “Couple that with, sort of, the fact that a lot of these participants and fans are in their 20s — it's an opportunity to bring a young new audience to Las Vegas.”
— Michelle Rindels
Carson City Restaurant Spotlight: Poké Beach
Trying poke (pronounce poh-kay) was a bit of a last food frontier for me — I have some lingering fish-hesitance from my childhood.
But since trying Poké Beach a few Nevada Days ago, I’ve been absolutely hooked on this place and the Hawaiian-inspired dish as a whole.
Think of it as deconstructed sushi, with all sorts of tasty fresh seafood heaped on a base of rice and topped with an abundance of veggies and sauces. What you lose in perfect sushi roll presentation, you gain in quantity, speed, and portability.
One of my favorite lunches is a Lava Bowl with half rice, half Fritos as a base, plus mango, jalapeño, avocado and a generous supply of sriracha. It’ll set you back $12 to $14, but it’ll power you through hours of afternoon committees and spare you both a carb coma and fried-food guilt.
Place your order at (775) 434-7066, get their app or order from the site at www.thepokebeach.com. The restaurant is located at 1442 E. Williams St. #2 in Carson City.
Have a restaurant suggestion for the Spotlight? Tell me at firstname.lastname@example.org. FYI: We’re not accepting free food in order to preserve the integrity of the reviews.
What we’re reading
Storey County and the county water district are not so keen on the idea of letting a major tech company form their own separate autonomous governing structure, Daniel Rothberg reports.
Another excellent installment of our Freshman Orientation profiles takes a look at Democratic Assemblywoman Natha Anderson, Michelle Rindels reports.
There are a handful of people in Nevada public life who you can read a quote from and hear it exactly in their voice. Legislative Counsel Bureau General Counsel Kevin Powers, who argued for the Legislature in the Opportunity Scholarship program lawsuit oral arguments, is one of those people (via Jazmin Orozco Rodriguez).
A hearing on a bill from the state Division of Water Resources to limit judicial review on decisions made by the state’s top water official almost (I’m so sorry for this) drowned in opposition (Nevada Current).
Nevada Department of Wildlife vs. Pete Goicoechea vs. the Center for Biological Diversity (Nevada Current)
A federal judge has denied the request for an extended signature-gathering deadline from the group backing a proposed ballot question to require parental notification for abortions performed on minors, a move likely ensuring the proposal will not qualify for the ballot.
Federal District Court Judge Miranda Du on Wednesday formally dismissed the lawsuit filed by “Protect Our Girls,” a political action committee formed this year with the backing of the anti-abortion group, Nevada Right to Life, in order to support the proposed ballot initiative regarding parental notification on abortions for minors.
But Du opted to dismiss the lawsuit outright — saying in a brief minute order (usually meaning an oral decision by the judge written out by a court clerk) that the PAC was essentially seeking emergency relief from the court, but that their filings suffered from “multiple defects” and failed to comply with court rules of procedure on emergency orders.
“Plaintiffs filed this case on September 10, and did not seek any emergency relief at that time,” the minute order states. “In addition, Plaintiffs state their initial request to the Secretary was denied back in April, and they include a vague reference to a settlement agreement in their Motion that must have fallen apart, because they have since filed a motion for a preliminary injunction, but do not explain when or why that agreement fell apart, or indeed why this case now requires the Court's expedited review considering that Plaintiffs have been aware of the November 18, 2020 deadline they now point to in support of their request for expedited review since they filed this case over a month ago.”
The case was formally closed on Tuesday, after Du approved a stipulation between the parties to dismiss the case and ensure that each side was responsible for its own attorney’s fees.
It’s likely the end of the effort to qualify the ballot initiative for this election cycle — attorneys for the “Protect Our Girls” PAC wrote in their initial filing that it would be “extremely difficult” to gather signatures by the deadline, owing to the COVID-19 pandemic shutdown and ongoing limitations on public gatherings.
Nevada law requires statutory initiatives to gather signatures equivalent to 10 percent of the votes cast in the preceding election (97,598 valid signatures statewide for the current election cycle). If enough signatures are deemed valid, the petition would then move to the 2021 Legislature, where lawmakers have a 40-day window to approve, deny or take no action on the petition. If they reject the petition or take no action, it would then move to the 2022 general election ballot.
As written, the proposed initiative would explicitly prohibit a physician from performing an abortion on an unmarried and unemancipated minor under the age of 18 without first notifying the individual’s custodial parent or guardian at least 48 hours before the procedure. The initiative would require the physician or an agent either directly notify custodial parents or through certified mail.
The decision is also a victory for the Nevada Resort Association and Vegas Chamber — both of which filed to intervene in the case earlier this month. Neither group weighed in on the merits of the ballot question, but said they opposed an extension of the signature-gathering deadline amid their ongoing opposition to the two proposed ballot initiatives by the Clark County Education Association to raise the state’s gaming and sales tax.
According to their most recent campaign finance filing, the Protect Our Girls PAC has raised more than $14,000 and has spent $2,500 over the last three months. It's only contribution over the last three months was a $2,500 donation from prominent Reno attorney Herb Santos.
Backers of a proposed ballot initiative that would require parental notification for abortions performed on a minor are suing Nevada election officials for an extension of time to gather needed signatures.
Attorneys for “Protect Our Girls,” the political action committee formed to support the proposed initiative, filed the lawsuit in federal District Court earlier this month seeking a court-ordered extension to the Nov. 18 deadline for the group to turn in enough signatures to qualify the initiative.
The initiative was originally filed in March and is backed by leaders of the anti-abortion group Nevada Right to Life. It would address issues with a 1985 state law that required parental notification, but was never enforced after being blocked by a federal court because of issues with the judicial bypass procedure.
Nevada law requires statutory initiatives to garner signatures equivalent to 10 percent of votes cast in the preceding election (97,598 valid signatures statewide for the current cycle). If enough signatures are deemed valid, the petition would move to the 2021 Legislature, where lawmakers have a 40-day window to approve, deny or take no action on the petition. If they reject the petition or take no action, it would then move to the 2022 general election ballot.
But the COVID-19 pandemic related shutdown and ongoing limitations on public gatherings make it “extremely difficult” for the group to gather signatures through the normal petition-gathering process, attorneys for the initiative said. Attorneys for the group said they petitioned the secretary of state’s office for an extension but were denied in early September, prompting the lawsuit.
“More time can—and must be—allotted to collect signatures to ensure Plaintiffs’ right to engage in political speech is sufficiently protected and doing so will not compromise the government’s interest in ensuring that only verified initiatives are included on the ballot,” attorneys for the group wrote in the filing.
The complaint asks the court to issue a temporary restraining order against the state law setting the Nov. 18 deadline for signature-gathering, and to extend the deadline for signature gathering for at least the period of time that the state’s stay-at-home order remains in place.
Representatives from Nevada Right to Life and the O’Mara Law Firm — which is representing the initiative in court — did not return calls requesting comment on the lawsuit.
There is some recent precedent for judicial-ordered extensions of signature-gathering deadlines related to ballot measures. In May, District Court Judge Miranda Du ordered the state to add several weeks to a signature deadline for backers of an independent redistricting commission ballot question (which nonetheless ultimately fell short of qualifying).
The proposed initiative would explicitly prohibit a physician from performing an abortion on an unmarried and unemancipated minor under the age of 18 without first notifying the individual’s custodial parent or guardian at least 48 hours before the procedure. The initiative would require the physician or an agent either directly notify custodial parents or through certified mail.
It would also create a legal procedure in which a minor can petition a District Court to avoid notifying a custodial parent or guardian, with various confidentiality provisions including the ability to use a fictitious name and to keep proceedings confidential. It also sets a timeline for hearings and decisions, including a maximum window of three judicial days after a petition is filed to hold a hearing, with an order required within the next day.
Additionally, it would create a misdemeanor penalty for anyone who “knowingly” performs an abortion on a minor without notifying a parent or guardian.
According to campaign finance records, the “Protect Our Girls” PAC has raised $9,325 since it was formed in March and the last reporting deadline of June 30. According to the Kaiser Family Foundation, at least 37 states have some form of parental consent or notification requirement in law prior to a minor receiving an abortion, but several have been enjoined by courts or are otherwise not enforced.
An effort to place a ballot question creating an independent redistricting commission on the 2020 ballot will have a second chance at life after a federal judge agreed to extend a June deadline to turn in signatures for the petition under “unique factual circumstances” brought by the COVID-19 pandemic.
In an order released on Friday, federal District Court Judge Miranda Du partially granted the request of Fair Maps Nevada to extend the deadline to collect signatures for the petition, which needs to garner 97,598 signatures by June 24 to make it on to the ballot. Attorneys for the group previously said it had collected around 10,000 signatures before Gov. Steve Sisolak ordered nonessential business shutdowns and other social distancing directives in mid-March.
Du noted that the order would not automatically qualify the measure for the ballot, where it must pass twice in subsequent elections to become part of the state Constitution. But she said not extending the deadline, especially in light of the pandemic, would violate the group’s constitutional rights which she said were not outweighed by any additional or expedited work that it would require of county or state election officials.
“As a matter of common sense, Plaintiffs will not be able to get their initiative on the ballot in November without an extension,” she wrote in the order. “And they may not even with an extension. But because they certainly will not get their initiative on the ballot without an extension, they would be irreparably harmed if the Court did not issue a preliminary injunction here.”
Under the order, the June 24 deadline (established under state law) is considered null and instead reverts to the constitutional deadline of 90 days before a general election, which is August 5. The parties in the case could also agree to a “reasonable accommodation” on an extension.
She wrote in a footnote that if it were up to her, an extension corresponding to the precise length of time the stay-at-home order has been in effect “seems the most reasonable.”
But Du did not allow the group’s other request: to require the secretary of state’s office to accept electronic signatures as valid for the petition, as opposed to those gathered in-person.
Du wrote that it would “take some time” to set up and roll out a process for signature collection and verification, and that the purpose and construction of the state’s laws on requiring in-person signatures were “narrowly tailored” to prevent voter fraud and thus survived legal scrutiny.
Regardless, the order breathes new life into the effort to amend the state’s historical redistricting process, which involves the drawing of congressional and legislative district maps and is typically left up to the Legislature.
The Fair Maps Nevada group filed its initial paperwork to qualify a change to the redistricting process in November 2019, led by organizations including the League of Women Voters of Nevada and the Brennan Center for Justice. The ballot question would create a seven-member redistricting commission — appointed by members of the Legislature and not allowed to have prior political experience or have been a lobbyist — charged with drawing district map boundaries.
Because it was filed as a constitutional amendment, backers needed to collect 97,598 signatures by June 24 to place the measure on the ballot, and then have it pass in two election cycles to become part of the state’s Constitution. The initiative would require approval of the new maps to come no later than July of 2023, and in future census cycles no more than 180 days after the release of census data.
But the group filed the federal lawsuit in early May asking a federal court to extend that June 24 deadline by at least six weeks, as traditional signature-gathering methods have been all but halted during the COVID-19 pandemic.
Although rural and urban county clerks and election officials opposed extending the deadline over process concerns, Du wrote that in this case, the constitutional violation of the group’s rights outweighed any severe inconvenience” facing election officials.
“The Court does not find severe inconvenience a compelling government interest given these extraordinary circumstances,” she wrote.
A federal District Court judge has again blocked a lawsuit filed by a conservative vote-monitoring group asking to effectively cancel the state’s mostly mail primary election.
In an order released Wednesday evening, Judge Miranda Du denied the amended request by Texas-based True the Vote and several Nevada voters to block the state’s election plan over fears of voter fraud, as well as because of an agreement between Democratic groups and Clark County election officials to mail ballots to inactive voters.
In her order, Du wrote that the group’s amended complaint “glaringly repackages old arguments” and failed to address most if not all of the issues she previously identified in her initial ruling denying the group’s request, including a lack of standing and that Secretary of State Barbara Cegavske’s office was not violating any constitutional rights by changing the election structure to lessen spread of COVID-19.
She also wrote that the new claims and articles cited by the group — plaintiffs alleged mailing ballots to inactive voters in Clark County \ could increase voter fraud — were “simply insufficient” to establish any kind of standing that potentially increased fraudulent votes warranted upending the entire election process.
“The Court finds that Plaintiffs’ second request for preliminary injunctive relief is therefore unreasonable and inequitable in seeking to undo the votes already casted by Nevadans and would result in squandering the state’s investment for the sake of an unestablished specter of voter fraud,” she wrote in the order.
Additionally, Du wrote in the order that the group’s request to not count already mailed-in ballots and require either in-person voting or a request for a mail ballot at this late point would cause even more problems and confusion with the election process. Already, some 119,000 voters in Clark County have returned their mail ballots, and an additional 40,000 ballots have been turned in to Washoe County election officials.
“Even if Plaintiffs’ preliminary injunction request was on firmer grounds, the Court cannot foresee any viable manner of undoing the Plan or stopping its further implementation without increasing the risks to the health and safety of Nevadans and putting the integrity of the election at risk—particularly without sufficient time to prepare an adequate alternative,” she wrote.
Attorneys for the True the Vote group, several Nevada voters and Nevada Right to Life filed their initial lawsuit in late April, claiming the planned mail-only election (with certain opportunities to turn in ballots in person) would “all but ensure an election replete with ballot fraud.” Cegavske’s office announced plans for a nearly all-mail primary election back in March as a way to lessen the risk of furthering the spread of COVID-19.
Their claims were rejected by Du later in April, who wrote that the state’s interest in “protecting the health and safety of Nevada’s voters and to safeguard the voting franchise in light of the COVID-19 pandemic far outweigh any burden on Plaintiffs’ right to vote,” including “speculative” claims of voter fraud.
But the group filed an amended complaint in mid-May, reiterating many of the complaints of potential voter fraud while also challenging an agreement struck between Clark County election officials and Democratic groups to mail ballots to inactive voters, which has been heavily criticized by state and national Republicans.
The term “inactive voter” is used to refer to any voter who doesn’t return an address confirmation card from election officials, typically a person who has moved or changed mailing addresses. Inactive voters are still allowed to vote, but their registration is cancelled if they skip two federal elections over a four-year period while also not responding to state or county election officials.
In her order, Du wrote that the group’s concerns with Clark County’s plans for inactive voters, as well as sending deputized election officials to pick up ballots, failed to identify actual constitutional violations.
“Clark County’s Plan may make it easier or more convenient to vote in Clark County, but does not have any adverse effects on the ability of voters in other counties to vote,” she wrote in the order. “Plaintiffs are unlikely to succeed on their claim of an Equal Protection violation where they provide no evidence—and cannot provide any—that the (Clark County) Plan makes it harder for voters in other counties to vote.”
Du also took issue with the nine-day turnaround time between her first order and the group filing its amended complaint, saying they “unreasonably delayed” seeking injunctive relief and presented no arguments that couldn’t have been included in their initial complaint.
“Plaintiffs surely have not acted with the alacrity that they claim this case necessitates,” she wrote.
The fate of a proposed ballot question creating an independent redistricting commission is now in the hands of a federal judge, who is being asked by proponents to order the state to extend a signature-gathering deadline and allow for electronic signature-gathering.
Attorneys for Fair Maps Nevada, the group backing the ballot question, argued in federal court on Tuesday that District Court Judge Miranda Du should order Secretary of State Barbara Cegavske’s office to offer those alternatives given that the normal playbook for gathering signatures has been thrown out the window given the strict social distancing and stay-at-home orders amid the COVID-19 pandemic.
But their requests drew a bevy of opponents, including attorneys for Cegavske, rural and urban election clerks, the Nevada Resort Association and a politically connected Las Vegas pastor who is suing the ballot question in state court. They raised a host of concerns and issues with the requests, including procedural concerns for printing and mailing ballots on time amid a possibly extended deadline and whether the injury suffered by the group warranted the extreme step of federal court intervention.
Du did not immediately issue a ruling, but said an order would likely be published sometime next week.
The case could have aftershocks affecting more than just the redistricting ballot question — it could also make it much easier for other pending or future ballot measures to qualify for the ballot, especially if deadlines are extended or electronic signatures are allowed. There are at least five other statutory or constitutional amendment petitions pending that have been filed with state election officials this election cycle.
The path to court began in November 2019, when organizations including the League of Women Voters of Nevada and the Brennan Center for Justice filed the ballot question to create a seven-member redistricting commission charged with drawing legislative and congressional map boundaries.
The ballot initiative was filed as a constitutional amendment, meaning that backers need to collect 97,598 signatures by June 24 to place the measure on the ballot, and then have it pass in two election cycles to become part of the state’s Constitution.
Although the ballot question’s description on signature-gathering forms has been challenged multiple times (and is still pending before the Nevada Supreme Court), Fair Maps Nevada attorney Adam Hosmer-Henner said the group had collected around 10,000 signatures by mid-March when Gov. Steve Sisolak and other leaders around the country began ordering business closures and issuing stay-at-home orders to slow the spread of COVID-19.
Hosmer-Henner said that state and county election officials were correct in taking steps to mitigate potential future COVID-19 infections by ordering a mail-only primary election, but that keeping the same requirements in place for signature gathering went against those public health efforts without offering a viable alternative.
“What the state is enforcing is in light of a public health emergency, an in-person signature requirement that is the opposite of what they chose to do in an all mail primary, which was trying to encourage people to stay apart,” he said. “The requirement will be greater and the burden will be greater on a voter who wishes to sign in support of a petition that actually would be to vote in favor of that petition,” he said.
But attorneys for the state said that the group was asking Cegavske’s office to take action beyond what her outlined rules and responsibilities are in existing state law regarding the collection of signatures for ballot questions, including the prohibition on electronic signatures.
“We're asking the secretary here to modify the law in some way that she doesn't have the power to do,” deputy Solicitor General Gregory Zunino said, representing the secretary of state’s office. “And that's why this case is problematic. She’s being used as a proxy here.”
Kevin Benson, an attorney representing a Las Vegas pastor who sued in state court over the ballot question’s proposed language on petition signing forms, also spoke after his client and the Nevada Resort Association were allowed to intervene in the case.
Benson said that the Fair Maps Nevada group appeared to be far behind in its signature-gathering given the number it had collected by mid-March, and that it had other opportunities or avenues to pursue in getting signatures for the petition, even amid the pandemic.
“The declaration is quite vague about what efforts they made to get a professional signature gathering firm online and activated,” he said. “So, in essence, what this comes down to is the plaintiffs are arguing that the pandemic excused them from even trying to circulate the petition, and their evidence shows that in fact they made no effort.”
Benson also said that Fair Maps Nevada had not presented any kind of plan as to how electronic signature verification would work; a contrast to other states where groups seeking to place petitions on the ballot have worked to get a potential system in place before turning to the courts.