Ruling on fate of Thacker Pass expected ‘in next couple months’

By: - January 6, 2023 7:06 am

An eagle over Thacker Pass (Photo credit: Max Wilbert)

A lawsuit over whether federal land managers erred when they approved plans for the largest lithium mine in the nation could be settled “in the next couple months,” said a federal judge in Nevada on Thursday. 

The case reflects the growing conflicts between conservationists, tribes, ranchers and mining companies looking to profit from the booming demand for electric car batteries. 

Lithium—the lightest metal—is a key ingredient in rechargeable batteries, leading to a race in recent years to find more domestic sources.

Nevada U.S. District Chief Judge Miranda Du held a nearly 3-hour hearing in Reno Thursday to review allegations from opponents that the mine was approved without proper environmental analysis or tribal consultation.

Former President Donald Trump approved the Thacker Pass lithium mine project in Nevada five days before he left office. It was one of several projects fast-tracked in the last days of the Trump administration to advance energy and mining development on public land.

Conservation groups, Tribal Nations, and a Nevada rancher sued federal land managers over the approval soon after and are asking the court to vacate the mine’s approval.

Du’s options for the mine include overturning Trump’s decision, upholding it, or ordering federal regulators to correct errors through an additional review.

“I hope to have a written decision, well, in the next couple of months,” the judge said.

The timeline set by Du, an appointee of former President Barack Obama, further delays the company’s plans, which originally envisioned completing construction of the proposed mine by this year. 

The developer, Canada-based Lithium Americas, was granted all necessary permits to begin construction, but the long-running case has delayed the process. The company had expected a ruling by last September. 

Attorneys for Lithium Americas argued the mine has the potential to greatly increase domestic lithium supply, and that further delays would harm U.S. interests. 

Du brushed aside the argument from Lithium Americas that the court should consider the mine’s potential as a “cornerstone” of domestic supply for lithium.

“That’s a policy argument you can make, which really doesn’t apply to my decision,” Du told the company’s attorney.

Although the Bureau of Land Management insists they followed all regulatory requirements when approving the lithium project, attorneys for the agency asked the court to consider allowing federal land managers to repair any errors rather than overturning their decision.

“BLM can correct any errors that are identified by this court,” including through a supplemental analysis, said the agency’s attorney. 

‘Presence of mineralization’

The case may rest on a 2022 U.S. appeals court ruling that found that while federal law allows mining companies to dig for metals on federal land, it does not necessarily allow use of federal land without valuable metals for related purposes – such as waste rock disposal or running power lines.

A federal judge ruled Rosemont Copper had a legal right to dig on public land in Arizona, but because there were no “valuable minerals” on the federal property it proposed to use as a waste dump, the court was obligated to halt the project.

Attorneys for the Bureau of Land Management argued the Rosemont Copper ruling was not applicable in the Thacker Pass case. BLM said there’s evidence of mineralization in all areas the mining company plans to utilize and that the agency did not make the same mistake as the U.S. Forest Service did when they approved Rosemont Copper’s plans to dispose of waste rock on public land adjacent to the mine.

“The presence of mineralization does not equate to establishing rights to minerals under the mining law. There’s a difference,” Du said.

Conservation groups say the Rosemont Copper case is relevant to their lawsuit. Attorneys for the conservation groups argued that nearly 6,000 acres of the Thacker Pass mining site does not contain lithium, adding that U.S. mining law does not allow the use of that acreage without separate environmental studies.

Lithium America’s attorney countered by arguing the Rosemont Copper case did not necessarily conclude that evidence of valuable minerals across the entire project site was required for the project’s approval, and that evidence of some mineralization throughout the project was enough.

“The BLM does not conduct validity determinations for permitting purposes,” said Laura Granier, the attorney representing Lithium Americas.

Outside the court, the Reno-Sparks Indian Colony and other opponents of the planned Thacker Pass lithium mine protested the project.

The Reno-Sparks Indian Colony joined the lawsuit after receiving a letter from the BLM denying its request for government-to-government consultation under the National Historic Preservation Act, which gives tribes the right to consultation when a project has the potential to affect areas of religious or cultural significance to the tribe.

In the colony’s traditional language Thacker Pass is referred to as “Peehee mu’huh” which translates to “rotten moon” in honor of the colony’s ancestors who were massacred in an area of the pass shaped like a moon. The site is considered sacred to several Paiute tribes in Nevada.

Attorneys for the Reno-Sparks Indian Colony argued that BLM failed to provide reasonable outreach to all tribes in the region that attach spiritual and cultural value to the site, adding that the agency only sent letters “initiating formal consultation” to three tribes in the region who did not respond due to the pandemic.

Federal land managers permitted an archaeological dig at the site last year, after Du ruled the company could conduct minor excavation work while she considered the merits of the case.

In response, the Reno-Sparks Indian Colony sent a letter to Far Western, a California-headquartered archaeological firm, urging the group “to immediately halt the planned archaeological digs and refuse to participate in the desecration of Thacker Pass for corporate greed.” However, excavation work has continued.

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Jeniffer Solis
Jeniffer Solis

Jeniffer was born and raised in Las Vegas, Nevada where she attended the University of Nevada, Las Vegas before graduating in 2017 with a B.A in Journalism and Media Studies.