Protect Thacker Pass has been receiving a lot of questions about whether Judge Miranda Du’s decision to deny Reno-Sparks Indian Colony and the People of Red Mountain’s Motion for Reconsideration of her order denying their Motion for Preliminary Injunction means that the case has been lost.
No, federal litigation over the Thacker Pass Lithium Mine Project is months from being decided. It’s a common misconception that once a lawsuit is filed no construction activity can begin. American law allows projects to continue destruction because once a government agency has issued a permit on a project and until a judge has ruled on the legality of that permit, it is presumed that the project is legal and construction activities can proceed.
RSIC and PRM moved for a preliminary injunction to stop those construction activities while the lawsuit is pending. But, this preliminary injunction would only have been in effect until Judge Du ruled on the legality of the federal permits.
RSIC and PRM can still appeal Judge Du’s decision to deny the preliminary injunction in the Ninth Circuit Court of Appeals. At the same time, there is growing evidence that BLM has also violated the Archaeological Resources Protection Act and the Native American Graves Protection and Repatriation Act. RSIC and PRM’s lawyers are working on using this evidence in the lawsuit. These new arguments also have the potential to delay construction and delay Judge Du’s final decision.
What does this mean on the ground? Far Western and Lithium Nevada cannot begin archaeological digs in Thacker Pass until BLM signs a Field Work Authorization. That could be tomorrow, that could be next week, or it could be next spring. We just have to be prepared for many different scenarios. Unfortunately, law is never an exact science and things can change quickly.
BLM, right now, appears to be holding off on signing that Field Work Authorization because Tribes are demanding consultation about the digs. But, this doesn’t mean that BLM will not unilaterally decide consultation is finished and then sign that Field Work Authorization. Tribes who consider Thacker Pass sacred or culturally or historically significant can contact BLM about consultation and express their opposition to the project, to archaeological digs, to the likely removal of human remains, etc.
As a final note, don’t believe everything you read in the news, especially about legal matters. Journalists – even otherwise reputable journalists – rarely understand the nuances of law and federal litigation and, therefore, write headlines and articles without truly understanding what they’re writing about. You can follow here for more accurate updates. Or, reach out to us and we’ll do our best to explain what’s happening.
The photo is of Will Falk and Reno-Sparks Indian Colony Chairman Melendez outside of the federal court in Reno to show we’re still standing strong.