Federal Judge Miranda Du is expected to make a decision this week on a request for an injunction in an attempt to temporarily stop progress at the site of the planned Thacker Pass lithium mine about 35 miles south of the Oregon-Nevada border.
If Du denies the injunction request, Lithium Nevada, a subsidiary of Canada-based Lithium Americas, will soon be able to hire an archaeological contractor through a Bureau of Land Management (BLM) permit to survey portions of the massive site for cultural and human remains.
The request for the injunction was made by the Reno-Sparks Indian Colony, the Burns Paiute Tribe and a group of Paiute and Shoshone people from the Fort McDermitt and Duck Valley reservations calling themselves Atsa koodakuh wyh Nuwu, or People of Red Mountain.
The Tribal groups requested last month to intervene and join in an existing lawsuit alleging that the BLM violated the National Historic Preservation Act in permitting the planned mine. After being permitted to intervene in the case, the Tribes filed for the injunction to stop archaeological surveys.
The lawsuit was originally brought by Basin and Range Watch, Great Basin Resource Watch, Wildlands Defense and Western Watersheds Projects. It was filed on Feb. 26 and alleges the BLM violated the National Environmental Policy Act and the Federal Land Policy Management Act among other laws. An injunction request made by the original plaintiffs was denied by Du in late July.
It is one of two lawsuits that have been brought against the project, which was approved in the final days of the Trump administration.
The other suit was filed by area rancher Edward Bartell, alleging the proposed mine violates the Endangered Species Act by harming Lahontan Cutthroat Trout and would cause irreparable harm to springs, meadows and the water table.
The previous request for injunction was based upon an environmental argument. The Tribes’ request for injunction is based upon a cultural one.
Thacker Pass is referred to in the Paiute language as Peehee mu’huh, which translates to “rotten moon.” It is named such because the Tribes contend there was a massacre of their ancestors in an area of the pass shaped like the moon.
“All of these people over the years, for millennia, have moved through Peehee mu’huh, have prayed and have hunted and gathered in Peehee mu’huh. And they had a right to be consulted, and BLM did not do that.”
Will Falk, legal counsel for the Tribes, during oral arguments heard Friday, said the BLM failed to provide appropriate outreach to all Tribes in the region that would be affected by the mining project. He said the agency only sent letters “initiating formal consultation” to three tribes in the region, none of whom were able to respond amid the COVID-19 pandemic.
Attorneys for the federal government argued that land managers adhered to the prescribed processes for determining what projects require government-to-government consultation. They also said the Tribes had not alerted the BLM to the sacredness of the land when any other projects in the vicinity had been completed.
The BLM in an environmental review noted that the disturbance of 52 known historic or prehistoric sites within the larger proposed mine area that could be affected.
Following Friday’s oral arguments, the Tribes and their legal counsel joined the Save Thacker Pass group, whose members have been camped out at the pass since winter, for a virtual press conference.
Max Wilbert, one of the co-founders of the group, joined the Facebook Live press conference from the pass.
“There are a lot of different reasons people oppose this mine—because it will harm wildlife, because it will pollute the water and draw down the water tables, because it’s going to destroy thousands of acres of habitat and harm sacred sites,” Wilbert said. “And not least because it’s a greenwashing project. The corporation claims it is good for the planet, when in reality it will only harm the planet in many ways.”
Falk also joined the press conference. He said the United States is and has always been built “on stealing Native land, massacring Native people, and then stealing the resources that Native people used or lived on.”
He also alleged that an archaeological survey of the area could cause serious damage to sacred sites.
“They want to dig at least seven 40-meter-long, several-meter-deep trenches … to see how many artifacts are actually in the ground in Peehee mu’huh,” he said. “When they do these things, the archaeological contractors get to keep those artifacts. According to the federal government, public land is not owned by Tribes. It’s owned by the federal government, and therefore any sort of artifacts or cultural resources that are on that public land, according to the federal government, are the federal government’s.”
This Is Reno asked BLM officials if it could be true that contractor archaeologists would get to keep artifacts found during a survey.
A BLM spokesperson replied on behalf of the agency, declining to answer the specific question and instead referring us to the Thacker Pass Environmental Impact Statement, and the Nevada Guidelines and Standards for Archaeological Inventory.
“At this time, we have no comment pending litigation,” the spokesperson said.
Falk said he thinks corporations like Lithium Nevada are just cashing in on people’s fear of climate change to make money, and said the proposed lithium mine falls in line with political agendas.
“The Biden administration wants lithium,” he said. “The Trump administration just wanted to mine the fuck out of everything. So, they were trying to fast track this and make sure that this happened before anyone knew what was going on.”
Falk alleged the BLM “handpicked” a few Tribes from whom it could solicit consultation knowing they’d have difficulty responding with meetings of leaders and Tribal councils largely canceled as a result of the pandemic.
“There’s probably at least 15 Tribes in the region that attach religious and cultural significance to Peehee mu’huh,” he said. “All of these people over the years, for millennia, have moved through Peehee mu’huh, have prayed and have hunted and gathered in Peehee mu’huh. And they had a right to be consulted, and BLM did not do that. The reason they did not do that was they were trying to get this through before anybody could notice this was going on.”
Falk said the Tribes are going up against an American legal system that is designed to work in favor of projects like the Thacker Pass lithium mine.
“So, we’ll just have to see what the judge decides,” he said.