A U.S. appeals court will consider challenges Tuesday to a huge lithium mine in Nevada in a case that pits 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.
For the first time since it blocked construction of an Arizona copper mine last year, the 9th U.S. Circuit Court of Appeals was scheduled to hear oral arguments in a two-year-old legal battle with striking similarities to the Arizona case. The Nevada mine is in the works near the Oregon line and would involve extraction of the silvery-white metal used in electric-vehicle batteries.
Lawyers for Lithium Americas — the Canadian company that broke ground on the project in March — as well as the U.S. government, conservationists, tribes and a Nevada rancher were allotted time to highlight their positions during Tuesday's hearing before a three-judge panel in Pasadena, California.
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.
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.
The Bureau of Land Management approved the mine 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.
Construction began in early March after the court denied opponents' request for an emergency injunction. In recent weeks, a few activists were arrested at a protest encampment organized by tribal leaders. The mining company subsequently filed suit in county court to prohibit any further trespassing and local sheriff's deputies served a protective order on its behalf, banning protestors.
“Our people couldn’t return to Thacker Pass for fear of being killed in 1865, and now in 2023 we can’t return or we’ll be arrested," said Bethany Sam, a descendant of one of the massacre victims and spokesperson for the Reno-Sparks Indian Colony who was among those arrested.
“Meanwhile, bulldozers are digging our ancestors' graves up," she said last week.
Lithium Americas has said reserves at the Thacker Pass mine would support lithium for more than 1.5 million electric vehicles per year for 40 years.
“There are no other U.S. alternatives to Thacker Pass to provide lithium at the scale, grade or timeline necessary to begin closing the gap between the lithium available and the lithium needed to achieve the U.S.’s clean energy and transportation goals,” its lawyers said in briefs filed with the 9th Circuit earlier this year.
The current 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.
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.
Citing the new “Rosemont precedent,” U.S. District Judge Miranda Du, in Reno, concluded the bureau violated the law when it approved plans for the Thacker Pass mine. But instead of blocking construction she allowed it to commence and ordered the bureau to present additional proof it had satisfied the law.
Biden administration officials said last month they would not challenge the 9th Circuit’s Rosemont ruling but the U.S. Interior Department’s solicitor general issued a new opinion on the reach of the mining law and the bureau submitted additional evidence it says satisfies the requirement that valuable minerals exist where the waste dump is planned.
The Western Watersheds Project, Great Basin Resource Watch and other environmental groups suing to block the mine disagree.
“The BLM has admitted that the Thacker Pass mine will have multifaceted impacts to groundwater, sage grouse, golden eagles, wetlands, visual and other resources, yet permitted the project based on a flawed environmental review,” said Kevin Emmerich, co-founder of Basin and Range Watch, another Nevada-based plaintiff.
The conservationists' lawyers going before the court on Tuesday said in recent filings that the new evidence is inadequate and wasn’t part of the overall plan the Bureau of Land Management approved.
Although Du refused to grant the injunction, her ruling invalidated the overall plan of operation for what “is now an incomplete ... illegal mine,” they wrote. “BLM’s new and rushed ... determination cannot cure BLM’s error."
