Judge denies Tribes’ request for injunction in Thacker Pass lawsuit

Judge denies Tribes’ request for injunction in Thacker Pass lawsuit
Thacker Pass protest in downtown Reno. Image: Bob Conrad / Nevada State News, June 13, 2021.

RENO–U.S District Court Judge Miranda Du on Friday denied another request for a preliminary injunction to temporarily halt work at the proposed Thacker Pass lithium mining site 35 miles south of the Oregon-Nevada border in Humboldt County.

Du held a hearing on Aug. 27 on the motion for an injunction, which was filed in late July.

Tribal members from the Reno-Sparks Indian Colony (RSIC), the Burns Paiute Tribe and People of Red Mountain—a group of Indigenous people from the Fort McDermitt Paiute and Shoshone Tribe—applied in July to intervene and join an existing case brought against the Bureau of Land Management (BLM) and Nevada Lithium, a subsidiary of the Canada-based lithium mining company Lithium Americas.

The original case was brought by four environmental groups and was already combined with a separate suit brought by a rancher near the project area.

The Tribes’ request to intervene was granted, and they quickly filed for a preliminary injunction to stop the BLM from permitting—and Lithium Nevada from hiring—an archaeological contractor to survey the proposed mine site. Before the mine can be built an Historic Properties Treatment Plan (HPTP) must be made and an archaeological survey completed.

The survey is expected to include the digging of “between two and 25 holes by hand at each of the 21 precontact historic sites and digging seven mechanical trenches (presumably by backhoe) at some of the sites—of up to a few meters deep and 40 meters long.”

The BLM must issue a permit for the survey under the Archaeological Resources Protection Act.  As of the date of the hearing, the BLM had yet to do so because it remained in consultation with the Tribes involved in the lawsuit and other Native American Tribes, according to court documents.

The Tribes’ legal counsel, Will Falk, argued that the BLM had failed to appropriately consult with Tribes in good-faith under regulations laid out in the National Historic Preservation Act (NHPA) and requested an injunction that would have required further consultation before the HPTP could be approved.

Falk has argued that there are about 15 Tribes with whom the BLM should have consulted on the project under NHPA. Specifically, it was noted in the injunction request that the BLM had not consulted with the Reno-Sparks Indian Colony or the Burns Paiute Tribe.

The reasonableness of the BLM’s decision to only consult with a few Tribes was the focus of arguments made by the parties involved in the suit.

To qualify for the preliminary injunction, the Tribes would have needed to demonstrate four things: “(1) a likelihood of success on the merits [of their arguments]; (2) a likelihood of irreparable harm; (3) that the balance of hardships” favored them and (4) that the injunction was “in the public interest.”

Du decided they did not succeed in those four things.

“Primarily because the Tribes have not shown they are likely to prevail on their claim that BLM’s decision not to consult them on the Project was unreasonable or made in bad faith, have not presented sufficiently specific evidence of irreparable harm that will likely occur if the HPTP proceeds, and as further explained below, the Court will deny the Motion,” she wrote.

She noted, however, that her order did not resolve the merits of the Tribes’ claims.

“Moreover, in considering the Tribes’ equitable relief request, the Court is not unpersuaded by the Tribes’ broader equitable and historical arguments, but the Court must operate within the framework of the applicable laws and regulations,” Du wrote.

BLM documents deemed sufficient proof of good-faith consultation

According to court documents, “In June 2021, the Tribes sent BLM letters raising concerns about the Project … This was the first time the Tribes raised their concerns about the Project with BLM.”

This was after the BLM had entered its Record of Decision (ROD) approving the project.

The BLM stated in its ROD for the project that it began consultation with Tribal governments in October of 2018 and specifically sent letters initiating formal consultation under Section 106 of the NHPA to the McDermitt Paiute and Shoshone Tribe, the Pyramid Lake and Summit Lake Paiute Tribes and the Winnemucca Indian Colony in December 2019.

The BLM’s ROD also states that no comments or concerns were raised by the Tribes during formal government-to-government consultation for the project.  

The BLM’s legal counsel argued that there have been ground disturbances at the project site since 2005 without any concerns raised.

Documentation was also provided showing that the RSIC had in 2015 provided the BLM with a cultural resources map identifying its official areas of cultural interest. The project does not fall within the areas identified on the map. This is why RSIC was not consulted on the project, the BLM’s legal counsel argued.

Du noted in her decision that a cultural resources representative for the Burns Paiute Tribe told a BLM official during a phone call about a Winnemucca Resource Management Plan (RMP), which was made “with the goal of identifying, protecting, and preserving significant cultural resources in an area including the Project area,” that the “Tribe would defer consultation to the Tribes that had reservations closer to the study area,” and that “it would not be necessary to keep the Tribe on the mailing list for” the RMP.

The Tribes claimed that the site of a massacre of their ancestors lies within the project area, but Du wrote that 1868 field notes found in the BLM’s records that describe a potential massacre site indicate that human remains that have been found “either do not fall within the Project area, or fall just within the area of indirect impacts, much less any specific location that will be excavated under the HPTP.”

If human remains are found during the survey, archaeologists will have to follow the regulations laid out in the Native American Graves Protection and Repatriation Act.

Du wrote in her decision, “In sum, while the Court finds the Tribes’ arguments regarding the spiritual distress that the HPTP will cause persuasive, the Court must nonetheless reluctantly conclude that they have not shown sufficiently specific irreparable harm that aligns with the relief they could ultimately obtain in this case. Because the Tribes have not made a sufficient showing on either the first or second Winter prong, the Court will deny the Motion.”