Sunday, October 24, 2021

Federal Court Holds Hearing on Thacker Pass Lithium Mine

Judge grants motion to intervene

Updated – July 28, 2021:

On January 15, 2021, the Humboldt River Field Office of the U.S. Bureau of Land Management issued a Record of Decision (RoD) approving the Thacker Pass lithium mine proposed by Lithium Nevada Corporation. The project would include 5,700 acres of public lands within the project area located approximately 53 miles north-northwest of Winnemucca in Humboldt County Nevada.

The RoD selects “Alternative A” from the EIS, which is Lithium Nevada’s preferred alternative. The plan was revised in December of 2020 to make corrections requested by the BLM and Nevada Department of Environmental Protection. According the BLM, those revisions did not substantially change the plan as proposed.

On May 27 of this year, four conservation and public accountability groups filed for a preliminary injunction in the Federal District Court in Reno that asks the court to prohibit construction of the Thacker Pass lithium mine. Yesterday, in the Bruce R. Thompson U.S. Courthouse and Federal Building, Chief Judge Miranda M. Du held a hearing on the injunction.

Counsel for the lead plaintiff, the Western Watersheds Project, challenged the U.S. Bureau of Land Management’s Final Record of Decision for the mine published on January 15. Attorney Talasi Brooks said the BLM had overlooked “irreparable harm” the mine could cause the sage-grouse and its habitat. Brooks said the sage-grouse is on the brink of extinction and that the mine’s potential impact on the bird had not been fully considered.

According to the US Fish and Wildlife Service, the sage-grouse’s official status is “Near Threatened,” though in March of this year, the U.S. Geological Survey published a study that shows sage-grouse populations have plummeted by some 80% since 1965. Human development, invasive plants, and massive wildfires are leading causes of the population decline, according to the report.

The U.S. Department of the Interior, in particular the U.S. Bureau of Land Management (BLM), and the Lithium Nevada Corporation are defendants. Attorney Arwyn Carrol represented the BLM and told Judge Du that the mine’s impact on the sage-grouse and its habitat had been exhaustively considered and a mitigation plan proposed.

State water and air quality permits are still pending for the mine. A cultural assessment is also outstanding and done as part of the National Historic Preservation Act. According to the BLM and Lithium Nevada, that work is in process. Arwyn said the disturbance created by the cultural assessment is smaller than a quarter acre and poses no threat to the sage-grouse or its habitat.

Lithium Nevada attorney Laura Granier told Judge Du that the company needs to place a trailer on the property with a fence around it so they can continue to work the project. She said Lithium Nevada employees feel intimidated by activists who have occupied the site since the day the RoD was published in January of this year.

As many as 100 anti-mine activists gathered in front of the courthouse during yesterday’s proceedings.

But attorneys for the plaintiffs were clear in communicating with the judge that their filing for a preliminary injunction is focused on environmental issues related to the mine and that the pending cultural assessment was a separate matter. 

Judge Du then briefly considered a motion filed on Wednesday evening that would add plaintiffs to the legal action. The Reno-Sparks Indian Colony (RSIC) and Atsa koodakuh wyh Nuwu (The People of Red Mountain) filed a motion to intervene as plaintiffs. 

In the motion, the RSIC claims that it attaches cultural and religious significance to historic properties that will be affected by the Thacker Pass lithium mine project.

According to the motion, “Atsa koodakuh wyh Nuwu/People of Red Mountain is an unincorporated association of indigenous peoples who share the common cause of enforcing their rights under federal law as members of the Fort McDermitt Paiute and Shoshone Tribe.”

The People of Red Mountain “consists of members of the Fort McDermitt tribe who hold, 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 intervenors contend that the BLM’s RoD violated the National Historic Preservation Act and the Administrative Procedure Act because “BLM issued the RoD before complying with the NHPA’s Section 106 requirements requiring meaningful government-to-government consultation with Indian tribes and before complying with NHPA’s Section 106 requirements pertaining to seeking and considering the views of the public in a manner that reflects the nature and complexity of the undertaking.”

On July 28, 2021, Judge Du granted the motion to intervene. In an email exchange with the Ally, a spokesperson for the Western Watersheds Project wrote that, “The four conservation group plaintiffs support the Reno-Sparks Indian Colony and Atsa Koodakuh Wyh Nuwu/People of Red Mountain’s motion to intervene.” 

Lithium Nevada has said that it is currently in consultation with affected tribes. The Ally has repeatedly attempted to contact Fort McDermitt Paiute and Shoshone tribal leadership to no avail. In 2019, the Ally spoke with then tribal Chairman Tildon Smart who supported the Thacker Pass project.

Lithium Nevada Corporation attorney Laura Granier argued that the delays brought by the legal action and on site protests come with a cost to the company. Granier said Lithium Nevada had spent $7.7 million on permitting so far and that the legal action is adding to that tally.

According to Granier, Lithium Nevada is currently raising money to finance construction of the mine, and legal challenges and protests have caused share values to decline.

Grainier also argued that the plaintiffs did not participate in the now complete National Environmental Policy Act process when given opportunity, a point that Roger Flynn, attorney for the plaintiffs, contested by saying some reports were not made available to the public, so the plaintiffs were unaware.

But Granier said that under the General Mining Act of 1872, if Lithium Nevada meets all state and federal permitting requirements, the company could not be denied access to what she called a critical supply of lithium needed for the rapidly growing demand for use in electric car batteries. Only Congress or the Secretary of the Interior can authorize a withdrawal from mineral entry, which neither has done for the Thacker Pass site.

Judge Du said she would rule on the temporary injunction by July 29.