Tuesday, September 28, 2021

Federal Judge Consolidates Lawsuits, Plaintiffs Opposing the Thacker Pass Lithium Mine 

Unified lawsuit has accrued a diverse set of plaintiffs and broader set of complaints

On July 28, 2021, Nevada Federal District Court Judge Miranda Du consolidated two lawsuits that challenge the Record of Decision (RoD) approving the Thacker Pass lithium mine proposed by Lithium Nevada Corporation. 

The US Bureau of Land Management (BLM) approved the Record of Decision (RoD) for the Thacker Pass mine project in Humboldt County, Nevada on January 15, 2021, in the waning hours of the Trump Administration. 

On February 11, 2021, Edward Bartell, a rancher who owns property above and below the proposed mine, filed a lengthy lawsuit in the United States District Court of Nevada in an effort to halt the mine’s development. The complaint alleges that the RoD violates sections of the Endangered Species Act, as well as the National Environmental Policy Act.

On February 26, 2021, a coalition of conservation and public accountability groups filed federal litigation in the District of Nevada that challenges approval of the Thacker Pass RoD for not adequately gauging the impacts of the mine on the threatened Greater sage-grouse and other species related to the proposed mine site.

On March 15, 2021, the Lithium Nevada Corporation filed a motion to intervene as a defendant. Judge Miranda Du granted the motion on April 5 of this year, and Lithium Nevada joined the manager of the Winnemucca District of the BLM Ester M. McCullough and the U.S. Department of Interior as defendants. 

On July 22, 2021, in the Bruce R. Thompson U.S. Courthouse and Federal Building in Reno, Chief Judge Miranda M. Du held a hearing on the injunction.

Counsel for the lead plaintiff, the Western Watersheds Project, 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.

But attorneys for the Western Watersheds Project were clear that their complaint was restricted to environmental and not cultural resource concerns.

Later in the hearing on July 22, Judge Du considered a motion 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 (Western Watersheds Project, Wildlands Defense, Great Basin Resource Watch, Basin and Range Watch) support the Reno-Sparks Indian Colony and Atsa Koodakuh Wyh Nuwu/People of Red Mountain’s motion to intervene.”

The Western Watersheds Project and its co-plaintiffs welcomed the intervention – see the following response to the intervention below. 

On July 28, Judge Du formally consolidated the Bartell and Western Watersheds cases.

The Burns Paiute Tribe filed a motion to Intervene as a plaintiff on August 2, 2021. Judge Du granted the motion on August 6.

On August 11, 2021, Judge Du scheduled a hearing date of August 27, 2021 on a motion for preliminary injunction from the People of Red Mountain to prevent any further disturbance to the site until the entire case can be heard on its merits. See the motion for preliminary injunction below.


Top photo caption and credit: An aerial view of the proposed Thacker Pass mine site – photo: Lithium Nevada