Thacker Pass Lithium Mine Update

Federal Judge hears arguments on motion to prevent any site disturbance

The proposed site of the Thacker Pass lithium mine in north-central Humboldt County, Nevada on May 4, 2021 - photo: Bob Tregilus , CC BY-NC-SA 4.0

The lawsuit opposing the Thacker Pass lithium mine proposed in north-central Nevada moved forward in Reno on August 27, 2021. U.S. District Court of Nevada Judge Miranda Du heard arguments on a motion for a Temporary Restraining Order and Preliminary Injunction to prevent any further disturbance to the mine site until the entire case can be heard on its merits.

Plaintiffs say any further digging or drilling on the proposed mine site will cause irreparable harm. The mine developer, Lithium Nevada, contends it cannot complete the site’s cultural assessment without doing some digging on roughly 1/10th of an acre of the 12,000-acre site.

Judge Du was in the courtroom in Reno for the online hearing. All other attendees were on Zoom.

Below is a copy of the motion.

Attorney for intervening plaintiffs, Will Falk, spoke first and said his clients, the People of Red Mountain, the Reno Sparks Indian Colony, and the Burns (Oregon) Paiute tribe view the area as a cemetery, a sacred place.

Falk compared the mine site area to Pearl Harbor or Arlington National Cemetery. Falk said the area of the mine is a massacre site, burial site, and a place eligible for National Register of Historic Properties. 

Falk added that his clients dislike the way artifacts are handled. He said that they are locked away in warehouses in plastic bags and sampled for carbon dating and other analysis.

“It’s like they (artifacts) have been stolen and you never get them back,” Falk said.

The plaintiffs also contend the tribes were not adequately consulted during the mine’s approval process. The U.S. Bureau of Land Management (BLM) attorney and Lithium Nevada disagreed.

BLM attorney Arwyn Carrol said during the hearing that the agency created a Resource Management Plan in 2005 for a vast area that includes the Thacker Pass site. She said they developed the plan in accordance with the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act. The area includes 8.4 million acres of public lands located within the jurisdiction of the BLM’s Winnemucca District. The area encompasses all of Humboldt and Pershing Counties, and parts of Washoe, Lyon and Churchill counties.

The BLM reached out to the Reno Sparks Indian Colony, the Burns Paiute Tribe, the Ft. McDermitt Paiute Shoshone Tribe, Summit Lake Paiute Tribe, Winnemucca Indian Colony, and other tribes to formally inquire about the locations of cultural resources in the Resource Management Plan area. 

The tribes listed several important sites in the area, but BLM attorney Carrol said there was no indication from any of the consultations that indicated the presence of a massacre site or burial grounds in the Thacker Pass area.

Judge Du said it seemed reasonable then, that the BLM would conclude that there are no human remains or other significant cultural resources in the Thacker Pass area.

During the process of considering the Thacker Pass mine proposal, Carrol said the agency had once again contacted the Ft. McDermitt Paiute Shoshone Tribe, Summit Lake Paiute Tribe, and Winnemucca Indian Colony, and no significant cultural resources were identified.

Attorneys for the BLM and Lithium Nevada said the People of Red Mountain are not a federally recognized or identifiable tribe and were not consulted.

Will Falk acknowledged that the tribes did not list any resources in the area when asked for the Resource Management Plan and during the Thacker Pass mine NEPA process. He explained that Indigenous Peoples are hesitant to disclose the locations of sacred sites for fear of them being defiled. He said this hesitancy is acknowledged in the BLM’s operational manuals.

For Lithium Nevada attorney Laura Granier, the claim comes too late. She said the first time the mining company heard that the mine site allegedly contains human remains was in June of 2021, after the mine had been approved in January. Both the BLM and Lithium Nevada argued that the tribes had ample opportunity to contest the mine through the NEPA process but did not exercise that right.

Attorneys for the plaintiffs argued the mine’s consideration was rushed under a Trump-era executive order mandating a 12-month turnaround for any NEPA project and that tribal members did not participate due to COVID concerns.

Lithium Nevada argued that the company is requesting the disturbance of 1/10th of an acre to complete the cultural assessment, which the company contends is small when compared to previous disturbances at the site. The Lithium Nevada attorney said that the Kings Valley Lithium project drilled 500 hundred test holes and removed 3,000 tons of material in 2009 with no concern expressed from any Indigenous community. 

Arwyn Carrol acknowledged that the plaintiffs view the site as important. “The BLM is not going to tell the tribes what they believe,” Carrol said and added that archaeologists had systematically walked more than 12,000 acres looking for artifacts. She said they found no evidence of human remains or a massacre. 

Judge Du asked if there were remains, would they be protected. 

BLM counsel Arwyn Carrol said that the discovery of human remains would likely halt the project, and the remains would be considered under the North American Graves and Repatriation Act (NAGPRA).

Lithium Nevada’s attorney concluded their statements by saying the Temporary Restraining Order and Preliminary Injunction are not warranted and echoed the lack of evidence to support the claim that the proposed mine site contains human remains.

Judge Du concluded the hearing by saying that she will render a written decision within a week.