SCOTT SONNER
Mon, June 26, 2023
Daranda Hinkey, a Fort McDermitt Paiute and Shoshone tribe member, holds a large hand-painted sign that says "No Lithium No mine" at her home, on April 24, 2023, on the Fort McDermitt Indian Reservation, near McDermitt, Nev. U.S. Bureau of Land Management has been fighting mining challenges for nearly three years of all sorts, like those of environmentalists, tribal leaders, ranchers and others who want to overturn its approval of a huge lithium mine in the works in northwest Nevada near the Oregon line. (AP Photo/Rick Bowmer, File)
RENO, Nev. (AP) — Lawyers for environmentalists and tribes urged a U.S. appeals court on Tuesday to overturn a judge's decision to allow construction to begin on a huge lithium mine in Nevada earlier this year before the plans were in full compliance with federal law.
A lawyer representing four conservation groups seeking to halt the project said a U.S. district judge in Reno illegally exceeded her authority when she refused to revoke the mine's operation plan in March despite her conclusion that federal land managers had violated the law in approving parts of it.
“This is the first time in public land history that we have a major project violating a number of provisions but is allowed to go forward,” Roger Flynn, the director of the Colorado-based Western Mining Action Project, told a three-judge panel of the 9th Circuit Court of Appeals.
“In the meantime, thousands of acres of public land are essentially being clear-cut,” he said Tuesday about the high-desert sagebrush that serves as critical habitat for the imperiled bird species sage grouse.
The Nevada mine at Thacker Pass near the Oregon line has pitted environmentalists and Native Americans against President Joe Biden’s plans to combat climate change and could have broad implications for mining operations across the West. The mine would involve extraction of the silvery-white metal used in electric-vehicle batteries.
This is the first time the San Francisco-based appellate court has considered the merits of such a case since it blocked construction of an Arizona copper mine last year based on a more stringent interpretation of a Civil War-era mining law regarding the use of neighboring lands to dispose of waste.
Lawyers for the Bureau of Land Management, the agency that approved the mine, and the mining company, Lithium Nevada Corp., denied the mine would cause any serious harm to sage grouse or other species.
They said Tuesday that U.S. District Judge Miranda Du in Reno acted within her authority when she allowed construction of the mine to begin in March while ordering the bureau to provide additional evidence it was in compliance with the so-called “Rosemont decision” that blocked the Arizona mine.
Lithium Nevada, a subsidiary of the Canadian-based Lithium Americas, spent more than $8.7 million on the environmental analysis and permitting process, even altering the original plans to move it outside of environmentally sensitive areas, said Laura Granier, a lawyer for the company. She said investments in mitigation, legal costs and initial construction already have exceeded $150 million.
“There were no short cuts. There was no expense spared, no corners cut when it comes to mitigation," she told the three-judge panel during an hour-long hearing in Pasadena, California.
The bureau approved the mine in 2021 on an accelerated basis under the Trump administration. But the Biden administration has continued to embrace it in an effort to ramp up U.S. production of lithium needed for electric vehicles that are an integral part of Biden's clean energy agenda.
Lithium Nevada officials say the Thacker Pass mine's reserves would support lithium for more than 1.5 million electric vehicles per year for 40 years.
Conservationists say the open pit mine, deeper than the length of a football field, will pollute the groundwater and destroy precious habitat for sage grouse, pronghorn antelope and other species in violation of environmental laws.
Leaders of the Western Shoshone and Paiute tribes have argued with little success to date that the Thacker Pass mine is on sacred lands where dozens of tribal members were massacred in 1865 by the U.S. Cavalry. Tribal leaders say the site cannot be disturbed under laws protecting historical and cultural resources.
The hearing focused primarily on interpretations of mining law but the panel heard brief arguments from a lawyer for the Burns Paiute Tribe, one of several tribes that have a related-but-separate appeal pending before the 9th Circuit that focusses on allegations the government failed to adequately consult with them about the project on their native homeland.
Neither the government nor the mining company dispute that the “tribes consider the entire Thacker Pass area sacred,” Rick Eichstaed said. “It was BLM’s continued responsibility to try to consult with the tribes.”
The appeal is based in large part on the legal landscape that has evolved since the bureau approved the Thacker Pass mine in 2021 and the appellate court’s decision in the Arizona case.
That April 2022 ruling upended the government’s long-held position that established mining claims automatically convey the same mineral rights under the 1872 Mining Law to adjacent lands where tailings and other waste will be buried.
In that case, the 9th Circuit held instead that the company must establish that valuable minerals are present under such lands for the claim to also extend to those lands.
Last month, the BLM submitted to federal court in Reno additional evidence the Thacker Pass mine it says meets that requirement.
Granier told the panel Tuesday the presence of valuable minerals on the land was never in question for a project she said is projected to yield a profit of $1.5 billion annually.
“No one would spend $150 million permitting a project, defending it in federal litigation and now constructing it for something that is not economically developmental,” she said.
Flynn said that regardless of the new mineral samples submitted in May, the bureau originally “approved the entire project based on the erroneous assumption that the company had valid existing rights under the mining law.”
Flynn said that after the judge agreed in March before construction began that the mine didn't comply with the law, she failed to weigh the harm that could result from allowing the mine to go forward. He warned of dire consequences if federal agencies are allowed to skirt the law based on assurances “we’ll fix it down the line.”
“This is a dangerous road to go on if we have massive environmental damage occurring," Flynn said “The only check on government authority is to vacate an illegal decision."
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