Media coverage regarding the July 21st Thacker Pass mine-related injunction hearing seems to misunderstand the current status and implications of the ongoing legal battles over Thacker Pass, or “Peehee Mu’huh.”
Contrary to these media misrepresentations, Thacker Pass’ fate has not yet been decided – far from it. Lithium Nevada still has formidable legal obstacles to overcome – including the recent addition of Paiute-Shoshone plaintiffs bearing new, stronger arguments against the excavation of cultural sites at Thacker Pass.
It’s true that on July 23rd, Nevada Federal District Court Judge Miranda Du refused to grant an injunction that would have prohibited, on environmental grounds, the archaeological excavation of cultural sites at Thacker Pass. The judge rejected claims that the preliminary archaeological digging (of numerous hand-dug holes and seven 40-meter trenches) would cause irreparable environmental harm to the area.
However, some of the recent media coverage fails to clarify two crucial points. First, the July 23rd decision pertains only to the request for a preliminary injunction, rather than to the underlying legal case itself. Second, and even more importantly, on July 19th new plaintiffs moved to intervene in the legal case.
What is a Preliminary Injunction?
A preliminary injunction is a court order that preserves the status quo between relevant parties while the judge makes larger decisions about the underlying case. Since American law assumes that money can repair all harm, the legal system often allows companies to continue their projects even during an active lawsuit. If the judge rules that the company (or the BLM) violated the law, these defendants can compensate the harmed party with money. However, many judges recognize that money is not always an adequate reparation for harm to the environment or to cultural resources. Therefore, in such cases, judges often entertain a preliminary injunction motion.
Why did Judge Du reject the first preliminary injunction request?
In considering the environmental groups’ motion for a preliminary injunction, Judge Du acknowledged the possibility that the initial, archaeological excavations mentioned above could cause irreparable environmental harm. Although the judge ultimately decided that the smaller archaeological excavations would not cause that level of disturbance, she has not yet ruled on the environmental threat posed by the entire project.
What comes next for the environmental lawsuit?
The underlying legal case (filed back in February by Western Watersheds Project, Wildlands Defense, Great Basin Resource Watch, and Basin and Range Watch), challenges the Bureau of Land Management’s Record of Decision, which permitted the corporation’s proposed lithium mine on public land. If the judge rules in favor of the plaintiffs and against the BLM, the Record of Decision will be suspended or vacated entirely. The judge’s final decision on that case is slated for January 2022 and will assess and respond to the environmental harm of the entire proposed mining project, which includes chemical processing facilities and a 400-foot deep open pit that would destroy miles of surface area in Thacker Pass.
Lithium Nevada investors are foolish to overlook the fact that the primary legal decision on the Thacker Pass project still remains to be made. Even more significantly, Judge Du recently accepted the addition of local tribal groups to the case. The judge acknowledged that these new plaintiffs make stronger arguments – on cultural grounds – against both the archaeological digging and the entire project.
Why and how are Native Tribes and organizations getting involved?
The night before the July 21st hearing, the Reno-Sparks Indian Colony and the People of Red Mountain (a committee of land protectors from the Fort McDermitt Paiute-Shoshone reservation) made a formal motion to intervene in the case. Conceding that the lawsuit filed by Western Watersheds, etc., did not adequately represent tribal concerns, Judge Du admitted these two groups as plaintiffs to the case. The Burns Paiute Tribe, making similar arguments, has since joined the case as well. In July 2021, the judge decided to consolidate the lawsuits by adding these three indigenous groups’ lawsuit, as well as the lawsuit filed by local rancher Edward Bartell, to the original case filed by the environmental groups.
On July 27th, the Reno-Sparks Indian Colony and the People of Red Mountain moved for their own preliminary injunction, on the grounds that digging up cultural sites — including burial sites and a massacre site — would do irreparable spiritual and cultural harm to them as indigenous people whose ancestors lived in and around Peehee Mu’huh.
The indigenous groups also argue that the BLM failed to adequately consult with all relevant tribes before issuing the Record of Decision.
What will happen if Judge Du grants the Preliminary Injunction request?
If the judge supports the tribes by granting this preliminary injunction after the hearing scheduled for August 27th, the corporation and the contracted archaeological group cannot disturb Thacker Pass until the end of January at the earliest. Receiving this injunction would mean that if the BLM issues an Archaeological Resources Protection Action (ARPA) permit to Far Western Anthropological Group, allowing archaeologists to begin trenching and digging at Thacker Pass, the BLM would be doing so illegally. Granting the preliminary injunction on August 27th would likely protect Thacker Pass until at least spring of 2022, since Lithium Nevada has stated they would have to wait for winter snows to melt before digging.
What if Judge Du refuses to grant the injunction?
Even if the judge refuses to grant the injunction in August 2021, both the BLM and Lithium Nevada still face many legal hurdles. The BLM must contend with a separate lawsuit filed by local rancher Ed Bartell and not yet heard in court. This lawsuit raises environmental concerns, including threats of further depletion of the already over-allocated aquifer and harm to Lahontan cutthroat trout, a Federally-listed threatened species. Bartell and another local rancher have also challenged water rights transfers which the corporation needs for the mine.
When will the preliminary injunctions be over, and the full lawsuit be heard?
Judge Du has stated that she intends to decide on this case by early 2022.
If the judge rules in favor of the tribes, the BLM will have to restart the consultation process. This process would need to include any tribes that wish to be included, and up to ten tribes in the region have demonstrable cultural ties to the Thacker Pass. The consultation process could easily take 1-2 years, during which time local, national, and international opposition may continue to build.
If the Judge rules in favor of Bartell and/or the environmental groups, the NEPA process may need to be revisited, which could similarly take years.
Meanwhile, Lithium Nevada also still needs air and water permits from the Nevada Division of Environmental Protection, Eagle Take permits from the U.S. Fish and Wildlife Service, and the ARPA permit from the BLM before construction can begin. The corporation also still needs the BLM to set the mining reclamation bond amount.
Contrary to statements made by Lithium Nevada and recent media coverage, this nefarious and ill-conceived lithium mining project still remains rather far from a reality. The fate of Peehee Mu’huh truly does still hang in the balance, and if any of the current plaintiffs win their cases, this mine could take many years to properly permit. It may never happen. It is essential that all people stand up against the destruction of the planet, poisoning of water, rampant colonialism, harm to local communities, and greenwashing represented by lithium mining projects like this.