FOR IMMEDIATE RELEASE
RENO, NV — The Bureau of Land Management (BLM) has been disobeying court orders and making “reckless, false statements” in a deliberate attempt to abuse the justice system and limit judicial oversight, according to a native tribe involved in the lawsuit against the planned Thacker Pass lithium mine in Nevada.
On Monday, attorneys for the Reno-Sparks Indian Colony made the allegations in a Motion for Discovery Sanctions filed in Federal Court. The Motion asks the court to revoke the permits for the Thacker Pass lithium mine to deter this abuse of the legal system.
“This is a coverup, plain and simple,” says Will Falk, attorney for the Reno-Sparks Indian Colony and co-founder of Protect Thacker Pass. “The BLM has broken the law. They have lied to the tribes, lied to the public, and lied to the court. Federal agencies must not be allowed to play these kinds of games with our judicial system.”
BLM Disobeyed Court Orders
The motion alleges that “BLM’s litigation strategy has involved withholding key [documents] for as long as possible,” noting that the agency failed to deliver more than 40,000 pages of documentation to the court throughout fall and winter, despite a court order.
These documents include evidence that undermines BLM’s legal arguments. The motion alleges, therefore, that BLM had “strong motives” to hide these documents, since doing so would limit judicial review and prevent the court and lawyers opposing the mine from accessing important evidence.
Federal Courts have previously ruled that agencies withholding information in this manner is an extremely serious violation of the law. The ruling in one case states that “Judicial review would be severely undermined if agencies could keep information from the court.” To prevent this abuse, courts have broad power to sanction government agencies that hide evidence.
A Pattern of Violations
The permitting process for the Thacker Pass lithium mine was rushed after the Trump Administration signed an executive order “fast-tracking” permitting for large projects like mines. The tribes, conservation groups, and ranchers suing the BLM have alleged that this fast-tracking led to violations of the law.
For example, the lawsuits against the project allege that environmental review was inadequate and that legally-required consultation with native tribes did not take place.
In April 2020, Nevada Senators Jacky Rosen and Catherine Cortez Masto wrote a letter to the Department of the Interior asking the agency to suspend public commenting periods or extend deadlines due to the pandemic. Instead of complying, public commenting periods for the Thacker Pass project were rushed.
An Overwhelmed, Overworked Agency
The newly revealed documents, which were finally provided to the court after months of delays, include internal emails showing BLM employees trying and failing to meet their legal requirements in permitting the mine. ““[W]e’re not going to make the one-year deadline… and I’m thoroughly frustrated trying to keep this process moving,” a BLM Geologist wrote.
In another message, a BLM Native American Coordinator stated “most projects aren’t this huge or destructive,” and went on to describe how significant cultural sites in Thacker Pass “would pretty much be destroyed by the project”. Despite these concerns being raised, tribal consultation did not take place.
Broadly, the motion argues that “BLM unreasonably and capriciously rushed the Thacker Pass Project permitting process” and failed “to meet its responsibilities under the National Environmental Policy Act and the National Historic Preservation Act.”
What is the Tribe Asking the Court to Do?
The allegations brought in the sanctions motion may entail significant penalties if the court decides they are justified. Specifically, the motion asks the court to:
Accept tribal claims that consultation with native tribes did not take place, given that the government has withheld evidence proving this to be the case;
Grant the Reno-Sparks Indian Colony’s “Motion to Amend,” which was denied in mid-January, when BLM was hiding evidence from the court;
Require the BLM to reimburse legal costs accrued due to these deceptions; and/or
To issue a default ruling on the entire case in favor of the Tribes. This would revoke the federal permit for the Thacker Pass lithium mine.
Illegal Lack of Consultation
While BLM’s Record of Decision for the project states that three tribes were consulted during project permitting, their efforts did not meet the BLM’s own definition of consultation. Documents proving this were hidden by the agency during early stages of lawsuit, and were only produced months later, by which time deadlines made their use impossible.
Six regional tribes have officially lodged their opposition to the Thacker Pass mine with the Bureau of Land Management. These include two of the three tribes BLM supposedly consulted with—the Summit Lake Paiute Tribe and the Winnemucca Indian Colony. Both say no consultation took place.
“The BLM has concealed conclusive evidence that there was no consultation with Tribes,” says Terry Lodge, also an attorney for Reno-Sparks Indian Colony. “This is a violation of federal law that undermined Tribes’ ability to seek justice, and the BLM must be held accountable.”
The tribes allege that BLM’s hiding of evidence has damaged their legal case in many additional ways. For example, last month Judge Miranda Du denied a Motion to Intervene filed by the Winnemucca Indian Colony (WIC), another tribe which is also opposed to the lithium mine and alleges the government has violated their rights. While BLM has claimed that WIC was consulted with, WIC says that didn’t happen, and BLM has refused to provide documents to the court that tend to support WIC. Judge Du based her rejection of WIC’s Motion to Intervene on the advanced stage of litigation, but the Reno-Sparks Indian Colony’s attorneys argue that the court’s accelerated timeline for the lawsuit was based on the premise that BLM provided complete documentation to the court.
“These lies have had repercussions throughout this entire case,” Falk says.
BLM Claims “No Tribes Consider Thacker Pass Culturally Significant”
In another example, BLM claims that “no tribes previously asserted a cultural, religious or historical interest in the Thacker Pass area in connection with a massacre or any other cultural site.”
But, the BLM hid evidence in the early stages of the lawsuit of a 2009 phone call with then-chairman Dale Barr of the Fort McDermitt Paiute-Shoshone Tribe.
In that transcript, Chairman Barr told BLM of a culturally significant massacre in the Thacker Pass area preserved in oral histories. Chairman Barr was referring to an inter-tribal conflict that gave Thacker Pass the original Paiute name Peehee Mu’huh. This is a separate event from the September 12, 1865 U.S. Cavalry massacre of between 31-70 Paiute people that began on the eastern side of Thacker Pass.
Permit to Harass Golden Eagles Issued
On March 10th, the U.S. Fish and Wildlife Service issued a 5-year permit authorizing Thacker Pass mining activities to harass or disturb Golden Eagles to the extent of preventing them from breeding. Lithium Nevada Corporation says this harm to golden eagles is necessary for their mine. The permit is an exception from the 1940 Bald and Golden Eagle Protection Act.
This is particularly concerning to regional Tribes, to whom eagles are sacred and culturally important beings. The lack of tribal consultation means that these concerns were not heard during permitting.