Judge again rules against tribes’ effort to stop lithium mine

A Nevada federal judge ruled against three Native American tribes seeking to halt construction of the country’s largest open pit lithium mine, but will allow them to amend their complaint against the U.S. government.

In the meantime, construction at Lithium Nevada’s mine near the Nevada-Oregon border will continue. Major construction on the lithium mine is scheduled to start in 2024, while production is expected to begin in late 2026, say Lithium Nevada officials.

In the order, filed earlier this month, U.S. District Judge Miranda Du dismissed the tribe’s claim that the mine’s approval violates federal preservation law and land policy.

Du ruled the three Native American tribes’ failed to prove that the Bureau of Land Management did not adequately consult with them, as required by the National Historic Preservation Act, which gives tribes the right to consultation when a project affects areas of religious or cultural significance.

However, the judge gave the tribes a month to amend their complaint, which claims construction of the lithium mine in Thacker Pass near the sacred site of a 1865 massacre violates federal law.

The three litigating tribes — Summit Lake Paiute Tribe, Reno-Sparks Indian Colony, and Burns Paiute Tribe — 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. 

In a ruling in 2021, Judge Du said evidence presented by the tribes that a massacre took place in Thacker Pass “further highlights the shameful history of the treatment of Native Americans by federal and state governments” but “does not definitely establish that a massacre occurred” within the proposed project site.

All three tribes claimed the BLM withheld crucial information from relevant agencies and misrepresented the extent of the agency’s tribal consultation before approving the lithium mine project.

The government dismissed those claims by arguing they have satisfied federal law by consulting with relevant tribes prior to approving the mine, and by continuing that consultation with tribes after the mine’s approval. 

Du agreed with the government’s argument and dismissed the tribe’s legal challenge, but left room for the tribes to amend their complaint related to the National Historic Preservation Act and further explain their claim that the BLM was legally required to complete the consultation process before approving the project. Du also gave the tribes space to amend their claim on how the government might have violated the Federal Land Policy and Management Act.

Part of the tribe’s lawsuit seeking to block construction of the mine is still pending at the 9th U.S Circuit Court of Appeals, where oral arguments will be heard in February.

Will Falk, representing the Reno-Sparks Indian Colony and Summit Lake Paiute Tribe, said consultation should have been completed before construction began to avoid or mitigate harm to the sacred site.

Tribal attorney’s on the case are still considering whether to amend the complaint by the Dec. 9 deadline or focus on their pending appeal, said Falk.

“We are very disappointed that the court is allowing Lithium Nevada to destroy the site of an 1865 massacre of Paiute peoples and a whole Traditional Cultural District before the Bureau of Land Management finished consulting with tribes,” Falk said. “While climate change is a very real, existential threat, if government agencies are allowed to rush through permitting processes to fast-track destructing mining projects like the one at Thacker Pass, more of the natural world and more Native American culture will be destroyed.” 

The new ruling is the latest in a series of legal setbacks for opponents of the lithium mine. Over the summer, the 9th U.S. Circuit Court of Appeals declined to vacate federal land managers’ approval of a lithium mine, ruling that the U.S. government took a sufficiently “hard look” at the project’s impacts before approving it.

Before that, Du also ruled largely in favor of Lithium Nevada and the Bureau of Land Management in a consolidated case involving claims brought by environmental groups, a local rancher, and two Native American tribes.

“We’ve dedicated more than a decade to community engagement and hard work in order to get this project right, and the courts have again validated the efforts by Lithium Americas and the administrative agencies,” said Tim Crowley, the vice president of government and community relations for Lithium Nevada, in a statement.