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Thacker Pass lithium mine clears most legal challenges, minus a judge ordered waste rock review


Thacker Pass lithium mine clears most legal challenges, minus a judge ordered waste rock review

Feb 07, 2023 | 8:14 pm ET
By Jeniffer Solis
Thacker Pass lithium mine clears most legal challenges, minus a judge ordered waste rock review
An eagle over Thacker Pass (Photo credit: Max Wilbert)

A federal judge on Monday ordered regulators to reexamine a state permit allowing Lithium Americas Corp.’s Thacker Pass mine to produce and store mining waste on more than a thousand acres of public land.

Chief Judge Miranda M. Du, however, rejected opponents’ claims that the project would cause “unnecessary and undue degradation” to the environment or wildlife, meaning construction of the mine can continue.

Jonathan Evans, President and CEO of Lithium Americas, said the ruling reflects the developers “considerable efforts to ensure Thacker Pass is developed responsibly and for the benefit of all stakeholders.”

“The favorable ruling leaves in place the final regulatory approval needed in moving Thacker Pass into construction,” continued Evans in a statement Tuesday.

Canada-based Lithium Americas signaled the company would not appeal the court’s decision and plans to “work closely” with the Bureau of Land Management to complete the required follow-up.

Du’s decision rested on a 2022 U.S. appeals court ruling that found 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.

In that case, 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.

A Lithium Americas attorney countered that 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.

Attorneys for BLM argued 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, because there’s evidence of mineralization in all areas the mining company plans to utilize.

Du was not moved by those arguments and concluded that 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.

The court determined the mine’s approval would not need to be overturned because federal regulators could correct their errors through an additional review.

Federal land managers and Lithium Americas will now have to find another dumping site or prove the site they intend to use for rock waste disposal contains valuable minerals — a strict test under federal mining laws.

Despite years of court battles and delays the Thacker Pass mine has attracted millions in investment including a $650 million commitment from General Motors. One major reason is that buried under the mine site sits the largest known source of lithium in the United States and the third largest in the world.

The mine has been a lightning rod for the growing conflict between conservationists, Native American tribes, ranchers and mining companies looking to profit from the booming demand for electric car batteries.

Several tribes who consider Thacker Pass sacred filed suit in 2021 to block development of the mine, arguing that the government failed to provide reasonable outreach to all tribes in the region that attach spiritual and cultural value to the site. The Reno-Sparks Indian Colony and the Burns Paiute Tribe joined conservation groups and other plaintiffs in trying to block construction on the mine. 

In the 49 page decision, Du ruled that federal land management agencies’ outreach and consultation with Tribal Nations in the region “was reasonable and made in good faith based on the information BLM had at the time it initiated consultation.” Du noted that BLM sent consultation letters to three Nevada-based tribes that failed to respond in the following months. 

The Paiute people 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.

“We have expected this decision for some time,” said Arlan Melendez, Chairman of the Reno-Sparks Indian Colony in a statement Tuesday. “This does not mean consultation was done correctly and it does not mean this fight is over. We will be continuing to advocate for this sacred site.”

The Reno-Sparks Indian Colony previously likened mineral extraction on ancestral land they hold sacred to “disturbing Pearl Harbor or Arlington National Cemetery.”

“Our hearts are heavy hearing the decision that Judge Du did not revoke the permits for the Thacker Pass Lithium Mine. Indigenous people’s sacred sites should not be at the expense of the climate crisis the U.S. faces. Destroying Peehee Mu’huh is like cultural genocide,” said the People of Red Mountain, Indigenous Land and Culture protectors who have fought the mine’s construction.

Conservation groups responsible for driving the lawsuit against the Thacker Pass lithium mine said they are reviewing the court’s decision and considering their options, including the right to appeal.

“We don’t know yet what the next steps will be, but we know we won’t stop fighting this destructive mine,” said Greta Anderson, deputy director of Western Watersheds Project in a statement Tuesday. “We need to find truly just and sustainable solutions for the climate crisis, and not by digging ourselves deeper into the biodiversity crisis.”

Updated with a statement from Arlan Melendez, Chairman of the Reno-Sparks Indian Colony.