PHOTO/FRANK X. MULLEN: Indigenous people from across Northern Nevada and others attended a rally at City Plaza June 12, 2021. held to bolster opposition against a lithium mine planned at Thacker Pass in Humboldt County.

Opponents of the open-pit lithium mine planned for Thacker Pass may attempt one more legal maneuver to defeat the project, even as construction on the mine continues at the site near the Nevada-Idaho border.

The 9th U.S. Circuit Court of Appeals in San Francisco recently denied an appeal by plaintiffs suing Lithium Americas, the corporation behind the Thacker Pass project. That appeal of a February court decision clearing the way for the mine was the culmination of a years-long fight against the project, which opponents say will destroy a sacred tribal area and cause irreparable harm to the environment, particularly water resources. Plaintiffs in the lawsuit include several Nevada tribes and tribal members, a local ranch owner, the Western Watersheds Project, WildLands Defense, Basin and Range Watch, and the Reno-based Great Basin Resource Watch.

John Hadder, executive director of Great Basin Resource Watch, said the plaintiffs are “considering options for the next legal pathway.” One option is asking that the case be reviewed by an 11-judge panel of the 9th Circuit in the hope those jurists will come to a different decision than the three judges who decided the appeal.

Construction work at the site began in March following the district court’s ruling.

Lithium Americas spokesman Tim Crowley said that “early works construction” is under way at the mine site, which includes installing water lines and troughs, and doing grading work. The company’s goal, he said, is for the mine to be in production by 2026. General Motors is contracted to purchase Lithium Americas’ entire product for 10 years after initial production begins. Lithium Americas predicts it will produce enough lithium to power 1 million GM cars every year.

Hadder said he is hopeful that if the appeal is reconsidered by the court, a majority of judges will find fault with the federal permitting process that approved the mine. The plaintiffs argue that the Bureau of Land Management, the agency that approved the project, assumed Lithium Americas had a valid mining claim at the site without performing an analysis to make sure that valid claim existed. The BLM’s assumption carries significant weight, he said, because it allowed the mining company to forgo a full environmental review of the project.

Hadder compared the Thacker Pass permitting process to the one used for a molybdenum mine at Mount Hope, near Eureka. The 9th Circuit vacated that project’s environmental impact statement based on the lack of a valid mining claim. The BLM then issued a supplemental impact statement, which also was challenged by Great Basin Resource Watch. In March, a federal judge in Reno vacated the approval of the Mount Hope mine. That decision was based on the BLM’s failure to prepare an analysis to determine whether valuable mine deposits existed at Mount Hope in the first place.

In May 2022, the 9th Circuit upheld a lower court’s invalidation of the Rosemont Mine, a proposed open-pit copper project near Tucson, Ariz. The appeals court held that the mining company’s claims were baseless, a decision also connected to assumptions about the site made by the U.S. Forest Service.

Those cases involved molybdenum and copper, and Hadder said he is concerned about federal pressure on judges and legislatures to relax standards on lithium, which has a critical role in weaning the nation off fossil fuels.

“The end use of the mineral needs to be de-coupled from the environmental analysis,” Hadder said.

Court sided with the BLM

In its decision, the appeals court noted it was satisfied the BLM conditioned its approval on Lithium Americas’ compliance with monitoring groundwater sources, according to Nevada’s environmental and human-consumption standards. The court found that the BLM properly addressed the impacts noted in the final environmental impact study and provided supporting data. The judges wrote that the agency had a “reasonably complete discussion of possible mitigation measures” for any impacts on groundwater and wildlife and was in compliance with the National Environmental Policy Act.

The court swept aside the tribes’ assertions that the BLM’s identification of which tribes to consult with was “arbitrary and capricious.” The ruling said the decision was in accordance with the National Historic Preservation Act, “because the BLM reasonably and in good faith identified tribes for consultation.”

The tribes argued that the mine should not have been approved, because it is planned near the site of two massacres of Indigenous people. One happened in September 1865, when Nevada Cavalry volunteers murdered at least 31 Paiutes.

The 9th Circuit concluded that the BLM took a “requisite ‘hard look’ at impacts on cultural resources” in compliance with federal law by identifying and documenting historic properties “through archival background research and by conducting intensive pedestrian inventories.” The three tribes consulted by the mining company, the court noted, did “not raise any concerns about specific traditional areas, sacred sites, or ceremonial areas or activities in the project area.”

The tribes involved in the lawsuit also argued that the mine should not have been approved, because it is planned near the site of two massacres of Indigenous people. One occurred prior to colonization. The other happened in September 1865, when Nevada Cavalry volunteers murdered at least 31 Paiutes, including elderly people and children, as they slept in shelters near Thacker Pass.

Neither the Reno-Sparks Indian Colony nor the Fort McDermitt Tribal Council, both plaintiffs in the lawsuit, returned calls asking for comment the ruling.

Katie Fite, of Boise-based WildLands Defense, said in an email to the RN&R that the controversy over the Thacker Pass lithium mine “has awakened the public to the dirty underbelly of what’s been branded as ‘clean energy’—it’s the same old hard-rock mining destruction of wildlife habitat, cultural sites and beautiful wild places. It’s the same old pollution of air and water and sucking the land dry. To top it all off, Lithium Americas, who started out claiming this was a different kind of ‘green mine,’ filed a vile … lawsuit against protesters standing up for the land and their beliefs.”

In May, members of the Fort McDermitt Paiute and Shoshone Tribe, the Pyramid Lake Paiute Tribe, Reno-Sparks Indian Colony and the Oglala Sioux Tribe blocked construction equipment and raised a tipi in the path of a water pipe set for installation. Lithium Americas called the Humboldt County Sheriff’s Office, and deputies twice went to the site, arresting one protestor who allegedly refused to leave the construction site, according to the Reno Gazette-Journal.

Firm touts ‘green’ energy

Lithium Americas asserts it is a leader in the environmental movement because the firm is mining a mineral that reduces reliance on combustion engines.

Glenn Miller, a professor emeritus in the Natural Resources and Environmental Science at the University of Nevada, Reno, is a proponent of the project. The lithium mine, he said, is “the most benign mine I have seen in 40 years.” Miller noted that no blasting is required; the waste is dry rather than wet, which prevents acid leeching into ground water; and the waste is near neutral, because much of it is magnesium sulfate, which can be sold for fertilizer.

The company’s pilot facility in Reno is in a large, clean warehouse on Corporate Boulevard. The engineers inside are designing lithium-processing procedures on prototype equipment. They test processes from beginning to end on small machines, they said, so when they arrive at the mine site, the procedures are reliable and verifiable.

Engineers Jerren Bailey and Devron Gonzalez, both University of Nevada, Reno, graduates, said they are thrilled to be on the edge of technology, processes and products that will contribute to environmental protection. They demonstrated how lithium is extracted from clay, mixed with water and taken through a process that removes impurities.

Each drop of water will be used seven times when processing the lithium ore, Crowley said. Backhoes will dig the pit to a maximum depth of 450 feet to reach clay deposits, rather than using blasting as is done in hard-rock mining. The mine pits, he said, will be backfilled after mineral extraction.

Frank X. Mullen contributed to this report.

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