RENO, Nev. -- 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.
A lawyer for 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, an environmental lawyer 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.
It’s 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.
“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.
Company 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.
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.
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.
