Nevada A.G. 'Legal Opinion'
Censures Elko Grand Jury

Elko Daily Free Press

A Nevada Attorney General's opinion released Friday absolves state wildlife employees of all wrongdoing associated with an Elko County Grand Jury presentment and suggests the grand jury committed the crime instead.
"The grand jury's actions amount to an attempt to convert its view of desirable public land policies, which are at odds with state and federal law, into a criminal indictment against state officials," states the 14-page opinion written by Deputy AG Wayne Howell.
"By invoking the criminal justice process for such improper purpose, the grand jury risks not only infringement on the powers of the legislative and executive branches of state government, it furthermore verges on committing the very crime of which it wrongly accuses others."
Howell's opinion was requested by Pete Morros, head of the state's Department of Conservation and Natural Resources, who oversees the Nevada Division of Wildlife.
NDOW Director Willie Molini and three NDOW employees were accused by the grand jury in a Feb. 13 report of committing the crime of oppression under color of office in the mule deer mitigation involving Independence Mining Corp.
The grand jury report, which also indicated the crimes were unprosecutable because the two-year statute of limitations had expired, said Molini and his employees illegally held up IMC's permit to expand and forced the company to pay



$500,000 toward improving habitat for a displaced deer herd.
Howell states in the opinion that NDOW was given legislative authority to accept the money. The grand jury contended Molini exceeded his authority in negotiating the mitigation payment.
Howell explained the Legislature approved NDOW's budget, which included the mitigation account, in the 1993 and 1995 sessions. The existence of the account was first approved by an interim finance committee and more specifically by the Assembly Ways and Means Committee.
According to Howell's opinion though, "the new account would authorize expenditure of gifts and donations from businesses."
Elko District Attorney Gary Woodbury said Howell's opinion is another example of Nevada politics at work.
"I've not been in politics long enough to call what they (NDOW) did to IMC a gift or a donation," Woodbury said.
IMC was seeking to expand its mining operation and had sought a permit from the U.S. Forest Service, which was held up through NDOW's demand for mitigation,


 
at a time when the company's gold supply was rapidly being depleted and the company was on the verge of going out of business.
NDOW originally demanded $1.5 million in mitigation, but later settled for the $500,000.
Woodbury said Howell's opinion does not mention the main question in the grand jury's report, whether Molini has the authority to negotiate such a wide range of mitigation fees.
Howell did not return a telephone call made to his office today, but his opinion also said private business could seek a civil court remedy.
"The law does not require the assent




of a regulated entity to the requirements imposed by law. Government regulation does not depend upon a voluntary contract, as the grand jury's peculiar reference to IMC's disparate bargaining power would infer," the opinion states. And in a footnote, Howell writes, "Even where agency action is arbitrary, civil remedies exist for redress."
IMC has rejected the allegations in the grand jury report and has said it does not feel it was the victim of any wrongdoing by state or federal employees.


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