Mining-tax petition OK as written, judge rules

Carson District Judge Michael Wilson ruled Wednesday that the description of what a mining tax petition would do is not invalid and doesn't have to be rewritten.

Nevadans For Fair Mining Taxes wants to raise the constitutional cap on the net proceeds of mines tax from 5 percent to 9 percent.

The Nevada Mining Association challenged the petition, arguing that the Description of Effect, designed to tell voters what the petition would do, was inadequate and misleading. Attorney Bradley Schrager said the association "is not here today to keep this off the ballot." He said that if it goes on the ballot, it first needs "a legally sufficient and appropriate" description for voters.

He said voters need to know that the mining tax is, according to the Nevada Supreme Court, how mines pay their property tax. He also noted that raising the tax to 9 percent would be an 80 percent increase in what mines pay to the state.

"Nothing in there lets Nevada voters know what they are being asked to do," he said.

But Margaret McLetchie argued on behalf of Monte Miller, the Las Vegas businessman who filed the petition, that the description doesn't have to have that level of detail and that it's up to the mining association to prove that the description is invalid. She said the description clearly points out that the limit would rise from 5 percent to 9 percent and that the decision whether to raise the actual tax would be left to the Legislature and governor.

"It's not misleading," she said.

She described the mining association's proposed language as "an attempt to co-opt the Description of Effect."

After the hearing, McLetchie said the description is the proponents' description, not the mining association's.

Wilson, after a 15-minute recess, agreed with McLetchie that the description written by proponents "is not clearly invalid."

He said the Description of Effect is "a significant tool to inform voters that must be straightforward, succinct and non-argumentative." He said the petition meets that test.

Schrager said he would consult with the mining association before deciding whether to appeal the decision to the Nevada Supreme Court.

But he said after the hearing that even if the question gets to the ballot and is approved twice by voters, it could face a serious constitutional challenge because the Nevada Constitution requires that property taxes be uniform and equal.

"Uniform and equal taxation is an important issue not only of state but federal constitutional law, and this measure would violate our understanding of that," he said.

That issue was raised during arguments in the case. McLetchie, however, told the court that "their argument is an argument for a different day."

The petition is one of two filed by Miller this campaign season. The other attempts to create a new top gaming tax bracket for the largest Nevada resorts. It was filed as a statutory petition rather than a constitutional change and would hit resorts making more than $250,000 a month with a 9 percent gross receipts tax. The current top tier is 6.75 percent for all resorts making more than $134,000 a month. That and the lower tiers would be unchanged in Miller's plan.

The Nevada Resorts Association has challenged that petition charging, again, that the description of what the petition would do is flawed and insufficient to properly inform voters.