In 2011, the Nevada Legislature created a mining oversight board – then it stopped meeting
The Nevada Independent
EDITOR’S NOTE: This article was first published by The Nevada Independent on Feb. 9 and is republished here with permission.
When then-Gov. Brian Sandoval appointed Melissa Clary to the Mining Oversight and Accountability Commission in January 2018, her expectation was that the board would soon meet to help regulate an industry so intertwined with Nevada’s politics that it is recognized on the state seal.
But a year after her appointment, there was a problem: It never met.
“My term expired without ever having a quorum to meet,” said Clary, whose term ended in June.
Today, the entire seven-member commission is vacant. A spokesman for Gov. Steve Sisolak, a Democrat, said the governor is re-starting the appointment process, a responsibility shared with the Legislature. Legislative leadership is responsible for recommending five of the appointees.
Since the commission’s last recorded meeting in December 2015, lawmakers and state officials have wrestled over the future of the board, charged in part with reviewing mining regulations.
In 2017, the Sandoval administration supported legislation to dissolve the commission, arguing that it was duplicative of other state regulatory boards. Mining watchdog groups pushed back on those claims. They said the board provided a necessary public forum to discuss mining issues. The Legislature kept the board around, but in practice, it operated as though it had been retired.
Former appointees to the commission have mixed opinions about whether it should exist and in what form, raising questions about its future. Even early supporters of the commission question how effective it will be if it does not receive full support from the governor’s office and legislative leaders.
Sheila Leslie, a former Democratic lawmaker who helped create the board and a long-time critic of how mining is taxed, said in an email that the “commission was a good idea and could work.”
“But if the governor and the Legislature won’t buy in, it’ll die by willful neglect,” she added.
‘Function like the Gaming Commission’
With bipartisan support, the Legislature created the mining oversight commission in 2011. It came amid backlash after the Department of Taxation had failed to conduct field audits at mines for years.
“It was something that was definitely needed at the time, especially coming from the realization that the mining tax was not being audited on a regular basis,” said Dennis Neilander, an original member of the mining commission and a former chairman of the Gaming Control Board.
The commission was housed in the Department of Taxation, but its statutory reach was much broader than tax policy. According to state law, it was charged with overseeing the state agencies that regulate the taxation, operation, safety and environmental impacts of mining.
“When we developed the idea in 2011, we thought it could function like the Gaming Commission and serve as the reviewing body for regulations,” Leslie wrote in an email.
Three state agencies — the Division of Industrial Relations, the Department of Taxation and the Division of Environmental Protection — were required to submit audits and reports to the board.
The commission also had the power to request audits, call witnesses and subpoena documents. And it was tasked with reviewing regulations approved by other boards that oversee mining: the Nevada Tax Commission, the Commission on Mineral Resources and the State Environmental Commission.
“The value of the [commission was that] it did bring everything together in one place and got new people engaged who aren’t normally engaged in the day-to-day mining industry,” said Kyle Davis, a former member of the commission and a lobbyist for the Nevada Conservation League.
Davis said that the commission’s structure brought different voices into the process. The State Environmental Commission, which reviews mining regulations, largely includes state agency leaders, and the Commission on Mineral Resources draws six of seven members from the industry.
“It was also good to get a different perspective,” he said.
This, Leslie said, was the original goal.
She said “it would have brought sunshine to the industry’s actions.”
‘A public comment board‘
But some appointees said the board devolved into a redundant regulatory check. In practice, they said that it exercised little authority and lacked the clout that gaming regulators wield.
Former state Sen. Greg Brower, a Republican who served on the commission until he left to work at the Justice Department, said he reached the conclusion that its work was duplicative.
He noted that other boards already reviewed mining regulations with opportunities for the public to comment. The State Environmental Commission, for instance, reviews regulations and holds hearings on environmental permits. The Nevada Tax Commission can adopt regulations. And the Legislative Counsel Bureau, he added, could conduct audits.
Brower and other appointees said they started to see the mining oversight commission as a pass-through board.
“You put all of that together and I recall concluding that maybe it made sense at the time,” he said. “But it wasn’t really adding much that wasn’t in place in terms of auditing and review.”
Part of the issue is the commission completed the bulk of its work in the first two years. In those years, it worked to fix the Department of Taxation audit issue and review existing mining regulations.
“After about the third year, it became more perfunctory,” Neilander said.
Roger Bremner, a former Democratic legislator and another member of the board, said that the commission lacked the wherewithal to do much more than collect public comments and testimony.
“We were kind of a feel-good board that didn’t really have any power,” he said.
Bremner, who chaired the Assembly Ways and Means Committee in the early 1980s, said that the commission turned into “a public comment board.” They listened to testimony but had little power to change regulations.
He recalled hearing testimony from residents of Silver City and Gold Hill about mining activity in Virginia City, but having no power to influence the issue.
“If they really wanted us to do something, we needed more authority than we had,” he said.
By 2016, the commission no longer had a quorum, and it stopped meeting.
“We just kind of disbanded,” Bremner said. “I don’t know how else to say it.”
Four years, two governors, no meetings
When the Legislature met in 2017, the Sandoval administration backed a bill to dissolve the board. In the years between, the administration and legislative leaders had not filled the commission with new appointments, which would have made it possible for the board to resume meetings.
“As we looked through it, we believed the oversight of our mining industry was very strong and there were a lot of checks and balances,” said Pam Robinson, a policy analyst for Sandoval.
Robinson noted that it was part of a legislative package to thin state government of duplicative boards. The legislation to dissolve the mining board looked to axe the State Dairy Commission, the Alfalfa Seed Advisory Board and the Garlic and Onion Growers’ Advisory Board.
But Leslie believes it was also reflective of changing politics. There were different priorities, and the two champions of the board — herself and then-Senate Majority Leader Steven Horsford — were gone. Leslie had lost an election to Brower in 2012. Horsford was elected to Congress.
Leslie suspects industry pressure dissuaded governors and legislators from appointing new members, in turn creating the pretext for arguing the commission was ineffective. She said Sandoval never bought into the board and “neither did much of legislative leadership or even the rank and file who really didn’t want their campaign contributions from mining to go away.”
According to minutes from 2017, state officials pointed to the lack of a quorum as one justification for why the board should be dissolved. They said the commission had fulfilled a primary purpose — to review mining regulations in light of the tax issues that came to light in 2011. The public, they argued, had other opportunities to comment on mining regulations.
In the end, the Legislature kept the commission alive — at least on paper.
A commission pending appointments
Why the Sandoval administration never appointed a full commission after 2015 remains an open question.
But “it was not for lack of trying,” Robinson argued.
Robinson noted the difficulty of finding qualified candidates to serve on the state’s plethora of boards and commissions. In this case, the statute delegated some of the responsibility for new appointments to the Legislature, making the process even more stringent and time-consuming.
According to the statute, the governor is responsible for two appointments. The governor selects the remaining appointees based on recommendations from the Assembly Speaker, the Senate Majority Leader and minority leadership. The governor consults with legislative leaders on his selections. No more than two appointees can have “a direct or indirect financial interest in the mining industry or are related by blood or marriage to a person who has such an interest.”
In 2018, nearly three years after the board’s last meeting, Sandoval finally appointed a new member: Clary.
Clary said she expected to start attending meetings. She attended an ethics training to prepare. Once Sandoval left office, she started asking the Sisolak administration if it would appoint new members. But Clary said she did not get much follow-up.
Then her term expired in June.
Now the entire board is vacant, and Sisolak has yet to appoint any new members.
That inaction has frustrated Clary, who has watched as the new administration has touted the scores of appointments it has made to state boards, most recently in a Feb. 6 press release.
“It’s not like they weren’t appointing people and considering applications,” Clary said.
Sisolak’s communications director, Ryan McInerney, said in an email exchange on Feb. 6 that “the governor has every intention of appointing members to the commission after he confers with members of Legislative leadership, as outlined in statute. Once the commission reaches quorum, the expectation is that they will begin conducting their work.”
Senate Majority Leader Nicole Cannizzaro said her office has not received any applications yet. But Cannizzaro added that she is “currently working with stakeholders to identify qualified applicants for recommendation in coordination with other legislative leaders and the governor’s office.”
Reviving the commission?
Even if the board is reconstituted, questions remain about how effective it would be.
Glenn Miller, a UNR emeritus professor who studied chemistry and a board member of Great Basin Resource Watch, testified in favor of the mining commission when it was created in 2011.
When asked if he thought the commission was effective, he responded bluntly: “No.”
“I think if it’s reconstituted, it will have to be done in a way where there is some mission,” Miller said. “It has to be staffed. It has to have people concerned about the impacts of mining.”
Miller said the industry had “come a long way” but there remain topics that the commission could study, including pit lake regulations, safety issues and the long-term management of acid heaps.
Assemblywoman Sarah Peters, a Reno Democrat who works as an environmental consultant, said the commission is necessary because it is one of the few places where a state board can collect public opinion on a range of mining topics, from operational issues to environmental issues. Since mining projects are sited on federal land, general public comment is often collected by federal regulators.
Peters believes the commission can serve, in part, as a state clearinghouse.
Peters said she is open to tweaking the commission’s current directive to adjust for a mining industry that has changed in the last decade, often placing a greater emphasis on social responsibility.
“We can change that [directive],” she said. “We can add from that or subtract from that.”
“But,” she added, “I don’t think dissolving the commission is the right action in this case.”
The Nevada Independent is a 501(c)3 nonprofit news organization. It’s committed to transparency and disclose all its donors. The following people or entities mentioned in this article are financial supporters of the Indy’s work: Brian Sandoval – $350; Kyle Davis – $720; Melissa Clary – $50; Ryan McInerney – $110; Steve Sisolak – $2,200.
On April 1, Nevada Gov. Steve Sisolak formally issued a “Stay at Home” directive for Nevadans and extended closures of nonessential businesses, gambling and school closures to April 30.