RENO, Nev. (AP) — A U.S. appeals court will hear challenges Tuesday to a massive Nevada lithium mine in a case that pits environmentalists and Native Americans against President Joe Biden’s plans to fight climate change and could have broad implications for mining operations across the west.
For the first time since it blocked the construction of a copper mine in Arizona last year, the 9th US Circuit Court of Appeals was due to hear oral arguments in a two-year-old legal battle with striking similarities with the Arizona case. The Nevada mine is underway near the Oregon line and would involve mining the silvery-white metal used in electric vehicle batteries.
Lawyers for Lithium Americas – the Canadian company that launched the project in March – as well as the US government, conservationists, tribes and a Nevada rancher had time to stress their positions during the hearing on Tuesday before a three-judge panel in Pasadena, Calif.
Chiefs of the Western Shoshone and Paiute tribes have argued with little success to date that the Thacker Pass mine is on sacred land where dozens of tribesmen were massacred in 1865 by US cavalry. Tribal leaders say the site cannot be disturbed under laws protecting historic and cultural resources.
Environmentalists say the open-pit mine, deeper than the length of a football field, will pollute groundwater and destroy valuable habitat for sage-grouse, pronghorn antelope and other species in violation of environmental laws.
The Bureau of Land Management approved the mine on an expedited basis under the Trump administration. But the Biden administration has continued to embrace it in an effort to increase U.S. lithium production needed for electric vehicles that are an integral part of Biden’s clean energy agenda.
Construction began in early March after the court rejected opponents’ request for an emergency injunction. In recent weeks, a few activists have been arrested at a protest camp organized by tribal leaders. The mining company then filed a lawsuit in county court to restrain further trespassing and local sheriff’s deputies served a protective order on its behalf, restraining the protesters.
“Our people could not return to Thacker Pass for fear of being killed in 1865, and now in 2023 we cannot return or we will be arrested,” said Bethany Sam, a descendant of one of the victims of the massacre and spokesperson for the Reno-Sparks Indian Colony who was among those arrested.
“Meanwhile bulldozers are digging the graves of our ancestors,” she said last week.
Lithium Americas said the Thacker Pass mine reserves will 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 deliver lithium at the scale, quality, or schedule needed to begin closing the gap between the lithium available and the lithium needed to meet the goals. Americans on clean energy and transportation,” his lawyers said in briefs. filed with the 9th Circuit earlier this year.
The current appeal is based largely on the legal landscape that has evolved since the bureau approved the Thacker Pass mine in 2021 and the appeals court’s decision in the Arizona case.
This April 2022 decision reversed the government’s long-held position that established mining concessions automatically convey the same mining rights under the Mining Act 1872 to adjacent lands where tailings and other waste will be buried.
The 9th Circuit instead ruled that the company must establish that valuable minerals are present beneath those lands for the claim to extend to those lands as well.
Citing the new “Rosemont precedent,” U.S. District Judge Miranda Du in Reno found the bureau violated the law by approving the Thacker Pass mine plans. But instead of blocking construction, she allowed it to begin and ordered the office to present further proof that she had complied with the law.
Biden administration officials said last month they would not challenge the 9th Circuit’s Rosemont decision, but the US Department of the Interior’s solicitor general has issued a new advisory on the scope of the mining law and the office has submitted additional evidence which it says satisfies the requirement that valuable minerals exist where the landfill is planned.
The Western Watersheds Project, Great Basin Resource Watch and other environmental groups suing to block the mine disagree.
“The BLM admitted that the Thacker Pass mine will have multifaceted impacts on groundwater, sage-grouse, golden eagles, wetlands, visual and other resources, but authorized the project based on a review environmental misdirection,” said Kevin Emmerich, co-founder of Basin and Range Watch, another Nevada-based plaintiff.
Lawyers for the conservationists who appeared in court on Tuesday said in recent documents that the new evidence was insufficient and not part of the overall plan approved by the Bureau of Land Management.
Although Du refused to grant the injunction, his decision invalidated the overall plan of operation for what “is now an incomplete…unlawful mine”, they wrote. “BLM’s fresh and hasty determination…cannot cure BLM’s error.”