Federal judge rejects NV tribe’s attempt to join lithium mine suit

by Jeniffer Solis, Nevada Current
March 15, 2022

RENO — A Nevada federal judge on Friday rejected a legal effort by the Winnemucca Indian Colony to join a lawsuit attempting to stop a mining project at Thacker Pass, a religiously and culturally significant area considered sacred to the tribe.

Also last week, Department of Interior attorneys urged the federal Ninth Circuit Court of Appeals to reject tribal concerns and allow the mine developer to excavate as planned.

U.S. District Judge Miranda Du turned down the Nevada tribe’s bid to participate in the lawsuit, finding that it was too late, and allowing the tribe to join “at this late stage would prejudice the other parties” and delay the case, wrote Du.

The court said that it hoped to resolve the merits of the case before the 2022 construction season begins and further ground disturbance occurs.

Environmental groups and two tribes already involved in the lawsuit— the Reno-Sparks Indian Colony and the Burns Paiute Tribe—urged the court to grant the Winnemucca Indian Colony’s request to join, arguing the motion would not prejudice them.

However the mine developer, Lithium Nevada, opposed the tribe’s’s request to join arguing that delays in the project timeline would cost the company millions of dollars, a point the judge agreed with.

Several tribes in Nevada, including the Winnemucca Indian Colony, consider Thacker Pass a sacred site and refer to it as “Peehee mu’huh” which translates to “rotten moon” in honor of their ancestors who they say were massacred in an area of the Pass shaped like a moon during an 1865 massacre.

“To build the Thacker Pass Lithium Mine on lands held sacred to our members would be like raping the earth and our culture,” said Chair of the Winnemucca Indian Colony, Judy Rojo, in a court declaration.

The Colony alleges the Bureau of Land Management failed to seek meaningful government-to-government consultation under the National Historic Preservation Act, which gives tribes the right of consultation when a project will affect areas of religious or cultural significance to the tribe. Rojo said she received her first and only letter from BLM about the project in April 2021, in the midst of a deadly pandemic.

Arguments by the Winnemucca Indian Colony that BLM failed to properly consult with them as required by federal law are similar to those made by the Reno-Sparks Indian Colony and the Burns Paiute Tribe, the main difference being that while the BLM sent at least one letter requesting that the Winnemucca Indian Colony consult on the project, the Reno-Spark Indian Colony and the Burns Paiute Tribe did not receive a single letter from the BLM about the project.

Judge Du determined that while the Winnemucca Indian Colony has similar claims to other tribal nations in the lawsuit, their claims are fundamentally different, and suggested the Colony may be better served filing a separate lawsuit against BLM.

The “key question implicit in all of WIC’s claims is not why was WIC not consulted (like RSIC and the Burns Paiute Tribe), but rather, is sending a few letters enough consultation? Thus, it would not be more efficient to let WIC intervene in this case than it would be to let WIC simply file its own case,” wrote Judge Du.

Thacker Pass remains an important part of the Colony’s cultural practices where they hunt deer and gather medical plants. Members of the Winnemucca Indian Colony also travel to Thacker Pass annually to perform the culturally significant Sundance ceremony, a rigorous sacred prayer dance lasting ten days.

Industrial development and mining pollution on the land would irreparably harm the Colony’s way of life and culture, said Rojo in filings.

In November, a decision by the lower court paved the way for Lithium Nevada, a subsidiary of Canada owned Lithium Americas, to contract archaeological surveys of the area that must be completed before construction of the mine can move forward.

The court rejected evidence presented by the Reno-Sparks Indian Colony and the Burns Paiute Tribe that a massacre took place in the area, including written records and two eyewitness accounts of federal soldiers massacring at least 31 Paiute men, women, and children at Thacker Pass in 1865.

Judge Du ruled that the evidence “does not definitely establish that a massacre occurred” within the proposed project site, calling the evidence “too speculative” to grant a halt on planned archaeological digs in Thacker Pass required before construction of the mine.

“We believe there may be archeological sites, religious and traditional sites, and areas of cultural importance to our Colony that may be desecrated or destroyed,” Rojo said in a court filing.

That decision has been appealed by the Reno-Sparks Indian Colony and the Burns Paiute Tribe.

BLM asks 9th Circuit to dismiss tribes’ concerns

Last year, the Bureau of Land Management (BLM) approved the Thacker Pass mine five days before the end of Donald Trump’s presidency. It was one of several projects fast-tracked in the last days of the Trump administration to advance energy and mining development on public land.

But the U.S. Department of the Interior, under Secretary Deb Haaland, does not appear inclined to oppose the project despite its rushed approval and opposition from several tribes.

On Thursday, the federal government urged the Ninth Circuit Court of Appeals to affirm Judge Du’s decision denying the Reno-Sparks Indian Colony’s request to prevent Lithium Nevada from breaking ground on the Thacker Pass Lithium Mine after uncovering records of a massacre to support their claim that historical graves exist near the project area.

In a brief, the U.S. Department of Interior argued against the Reno-Sparks Indian Colony and the Burns Paiute Tribe’s request to pause excavation on the site, saying that the BLM had made reasonable attempts to include input from tribes in the immediate surrounding area, including the McDermitt Paiute and Shoshone Tribe, Summit Lake Paiute Tribe, and Winnemucca Indian Colony.

Attorney’s for the Department of the Interior argued that “despite numerous public processes involving the Thacker Pass area” Nevada tribes fighting the mine “never informed BLM that they attached any significance to the area.” The agency also argued that religious significance or “sacredness” of an area is not enough to prevent digging, adding that litigating tribes have failed to prove “irreparable harm” would be caused if the area is disturbed.

The agency said in the brief that BLM did not consult with the Reno-Sparks Indian Colony of the Burns Paiute Tribe because they hadn’t provided “evidence before BLM indicating that they attach any cultural or religious significance to the Thacker Pass area,” prior to the project’s approval.

The Reno-Sparks Indian Colony has stated previously that federal agencies “must understand that Thacker Pass is a shared use area by a number of tribes” and “just because regional tribes have been isolated and forced onto reservations relatively far away from Thacker Pass does not mean these regional tribes do not possess cultural connections to the Pass.”

The agency also noted in the brief that it “can and is reviewing the new information about the potential massacre site under the post-discovery rules.”

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