Land defenders pray at Thacker Pass. (Photo by Max Wilbert)
A week after a federal judge closed a lawsuit against federal land managers and a mining developer, three Native American tribes have filed a new lawsuit centered on the largest known source of lithium in the United States.
The new lawsuit comes after U.S. District Judge Miranda Du ruled largely in favor of Canada-based Lithium Americas and the Bureau of Land Management in a consolidated case involving claims brought by environmental groups, a local rancher, and two Native American tribes.
Both tribes involved in the previous lawsuit—the Reno-Sparks Indian Colony and Burns Paiute Tribe— joined the new lawsuit along with the Summit Lake Paiute Tribe.
“When the decision was made public on the previous lawsuit last week, we said we would continue to advocate for our sacred site PeeHee Mu’Huh. A place where prior to colonization, all our Paiute and Shoshone ancestors lived for countless generations,”said Arlan Melendez, Chairman of the Reno-Sparks Indian Colony in a statement. “It’s a place where all Paiute and Shoshone people continue to pray, gather medicines and food, honor our non-human relatives, honor our water, honor our way of life, honor our ancestors.”
Paiute and Shoshone people, including all three litigating tribes, refer to Thacker Pass as “Peehee mu’huh” which translates to “rotten moon” in honor of their ancestors who were massacred by the U.S. Cavalry in 1865 in an area of the pass shaped like a moon. According to Melendez, victims of the massacre never received a proper burial.
In the lawsuit filed last week, attorneys representing the tribes refined their complaints about the Bureau of Land Management’s consultation prior to the agency’s approval of the project.
In the court filing, tribes claimed the BLM withheld crucial information from the Nevada State Historic Preservation Office and misrepresented the extent of the agency’s tribal consultation before approving the lithium mine project.
Federal land managers are required to work with the Nevada State Historic Preservation Office to identify historic properties on state or private land, including any documentation of consultation with tribes. However, attorneys claim BLM did not provide the office with documentation as required before approving the project.
“Part of the Federal Government’s responsibility is to determine if a proposed mining project may adversely affect historic properties. Historic properties include Native American massacre sites. The BLM failed in its trust responsibility to tribes and now our ancestors’ final resting place is currently being destroyed at Peehee Mu’huh,” said Michon Eben, the Tribal Historic Preservation Officer for the Reno-Sparks Indian Colony.
Both the Reno-Sparks Indian Colony and Burns Paiute Tribe previously sued federal land managers after they were not consulted on the lithium project, arguing the oversight violated the National Historic Preservation Act, which gives tribes the right to consultation when a project might affect areas of religious or cultural significance to the tribe.
The BLM maintains that the agency consulted with relevant tribes prior to approving the Thacker Pass mine, including the Summit Lake Paiute Tribe. The Summit Lake Paiute Tribe was one of three tribes the BLM said they consulted via written letter.
Attorneys for the Summit Lake Paiute Tribe, however, contest the claim that the tribe was properly consulted.
In the previous 2021 lawsuit, Du dismissed the two intervening tribes’ argument that BLM had to consult with all tribes that attach cultural and spiritual significance to Thacker Pass. Du ruled BLM’s outreach and consultation with tribes in the region “was reasonable and made in good faith based on the information BLM had at the time it initiated consultation.”
While the Summit Lake Paiute Tribe’s argument in the new lawsuit is similar to those previously made by the Reno-Sparks Indian Colony and the Burns Paiute Tribe, their legal claims may be viewed as fundamentally different, based on previous rulings.
In a prior decision, Du noted that a Nevada tribe BLM considered eligible for consultation on the project may be better served filing a separate lawsuit against the agency.
The key question in the Summit Lake Paiute Tribe claims is not why they were not consulted, but rather, is sending a few letters enough consultation?
In a statement, Tim Crowley, vice president of government affairs and community relations for Lithium Nevada said, “Since we began this project more than a decade ago, we have been committed to doing things right. The recent U.S. District Court ruling definitively supported the BLM’s consultation process, and we are confident the ruling will be upheld.”
Attorneys representing tribes in the new lawsuit also allege that Lithium Nevada began construction in Thacker Pass under a set of older permits for mining-related activities in Thacker Pass that were supposed to have been terminated.
Further, the tribes say the BLM has expanded the scope of previous permit authorizations, allowing Lithium Nevada to conduct preliminary mine construction activities that have harmed traditional cultural properties in Thacker Pass.
In total, the lawsuit asserts the BLM violated the Federal Land Policy Management Act, the National Historic Preservation Act, and the National Environmental Policy Act, and is also guilty of Breach of Contract.
“The Tribes have notified BLM of the cultural, spiritual, and historical significance of Thacker Pass, but BLM continues to refuse to acknowledge this information,” said Will Falk, the attorney representing the RSIC and SLPT. “BLM’s failure to acknowledge the information the Tribes have provided about the significance of Thacker Pass was not reviewed by the court in the previous lawsuit. BLM has committed a number of violations of federal law since the original lawsuit was filed in 2021. My clients and I look forward to exposing the tricks BLM has played on the Tribes for the Thacker Pass Project.”
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