by Jeniffer Solis, Nevada Current
Construction of what may become the nation’s largest lithium mine can proceed after a U.S. appeals court denied a last ditch effort by tribes and conservationists to block the controversial project.
In a decision Monday, the 9th U.S. Circuit Court of Appeals declined to vacate federal land managers’ approval of a lithium mine at Thacker Pass near the Nevada-Oregon border, ruling that the U.S. government took a sufficiently “hard look” at the project’s impacts before approving it.
Developer Lithium Nevada Corp. will be free to continue its plan to bury 1,300 acres of public land under waste rock, after the San Francisco-based appellate court determined the U.S Bureau of Land Management did not violate federal environmental laws when it approved the project two years ago.
The three-judge panel unanimously upheld a lower court’s decision in favor of the federal government, concluding that the BLM fully reviewed potential environmental impacts as required under the National Environmental Protection Act, including mitigation measures for potential groundwater pollution and impacts on migratory birds, big game and other wildlife.
“The BLM’s approval of the project was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with NEPA,” the 11-page opinion says.
One-by-one, the panel of judges dismissed arguments by conservation groups and Native American tribes in their written opinion.
The Burns Paiute Tribe have argued that the BLM failed to make a “good faith effort” to identify all tribes who attach religious and cultural significance to Thacker Pass before approving the mine, sidestepping meaningful government-to-government consultation with tribes.
Several Paiute and Shoshone tribes consider Thacker Pass sacred, referring to the area as “Peehee mu’huh” or “rotten moon” in honor of their ancestors, who were massacred on two separate occasions in an area of the pass shaped like a moon, including by the U.S. Cavalry in 1865.
However, the appeals court ruled the BLM acted “reasonably and in good faith” in its consultation with tribes.
“There was no evidence before the BLM that suggested that the Burns Paiute Tribe attached religious or cultural significance to sites in the Project area,” the opinion says.
Federal land managers removed the tribe from the agency’s mailing list after the Burns Paiute Tribe suggested BLM consult tribes with reservations closer to public land in the agency’s Winnemucca Resource Management Plan — a 7 million acre area that includes Thacker Pass — a move the panel of judges said did not violate the National Historic Preservation Act.
Missing from the multi-page opinion, however, was a response to arguments by opponents that the approval of the Thacker Pass mine is inconsistent with a 2022 9th Circuit ruling that found federal mining law does not necessarily allow use of federal land without valuable metals for related purposes – such as waste rock disposal or running power lines.
Early this year, U.S District Judge Miranda M. Du in Reno concluded that the BLM violated federal law when it approved Lithium Americas’ plan to bury 1,300 acres of public land under waste rock without determining the company’s mining rights to those lands. However, she did not vacate federal approval of the mine.
Lawyers representing opponents of the mine said Du erred when she allowed construction on the project to continue despite her conclusion that federal land managers had violated federal law when they approved a permit to dump waste rock on federal land without valuable minerals.
Opponents of the mine warned the 9th Circuit decision would “affirm one of the worst environmental impact statements” in the last two decades.
“The actions of the Bureau of Land Management were determined to be illegal, but the courts will nevertheless allow the Thacker Pass lithium mine to destroy a significant indigenous cultural landscape, sage grouse habitats, and potentially driving a rare species of springsnail extinct,” said John Hadder, the director of the Great Basin Resource Watch, a plaintiff in the lawsuit. “This is a dangerous example for future mine permitting.”
In May, a federal review found that much of the federal land claimed by Lithium Americas did have evidence of mineralization, however, about 80 acres did not, making the use of those lands as a waste dump invalid. The plan of operations for the mine includes about 150 acres for “exploration-related disturbances” within the project area, a sizable chunk of land.
In response Lithium Americas said they plan on using the mine pit itself as a site for waste rock through backfilling, according to the review. The mining company was given essentially limitless time to come up with a plan of action for the remaining waste rock.
Representatives for the Canada-based company expressed support for the decision.
“We have always been confident that the permitting process for Thacker Pass was conducted thoroughly and appropriately. We are pleased to see such a decisive ruling to further support this decision. Construction activities continue at the project as we look forward to playing an important role in strengthening America’s domestic battery supply chains,” said Tim Crowley, the vice president of government and community relations for Lithium Nevada, in a statement.
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