Judge largely affirms federal permit for Thacker Pass lithium mine near Winnemucca
A U.S. district court judge Monday upheld the federal government’s decision to approve the Thacker Pass lithium mine north of Winnemucca after a permit issued in 2020 faced three legal challenges from conservationists, Indigenous communities and a local rancher.
Judge Miranda M. Du found the U.S. Bureau of Land Management generally did not err in approving the permit for the massive lithium mine but asked the agency to revisit one section of the environmental analysis upon which the decision was based. The ruling could pave the way for the mine to proceed and does not undo the federal permitting as challengers hoped.
The ruling, however, requires the company and the federal agency to validate mining claims for storing waste rock on federal public land, what a mining watchdog described as a “strict test.” Under that order, the agency must assess mining claims that Lithium Americas, the company developing the mine, holds in accordance with an 1872 law governing mining on public lands.
At the center of the closely-watched court battle was the future of a geologic deposit described as the largest known lithium source in North America. Policymakers and politicians have touted the hard-rock mine as an essential piece of the domestic supply chain. Last week, automaker General Motors announced a $650 million investment to bring the Thacker Pass mine online.
But the mine has come to symbolize the tensions — and costs — of an energy transition that will require more mining for minerals needed in technologies including batteries and electric vehicles. Thacker Pass faced pushback from local residents and tribal governments with deep connections to the land and environmental organizations who cited the impact a mine project would have on wildlife and the ecosystem at the base of the Montana Mountains.
“While the case encapsulates the tensions among competing interests and policy goals, this order does not somehow pick a winner based on policy considerations,” Du wrote in her order on Monday. “The Court’s role instead is to carefully apply the applicable standard of judicial review to consider the decision of a federal agency that is generally entitled to deference…”
In a statement Tuesday, Lithium Americas said it will comply with the order to revisit the claims and that the court “did not impose any restrictions expected to impact the construction timeline.”
“The favorable ruling leaves in place the final regulatory approval needed in moving Thacker Pass into construction,” Jonathan Evans, the company’s chief executive, said in a statement.
The groups challenging the mine’s permit could still appeal the decision.
In 2020, at the end of President Trump’s administration, federal land managers approved the Thacker Pass mine based on an environmental analysis and in accordance with environmental laws known as the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA). Soon after, several environmental groups and an Orovada rancher challenged the decision. The Reno-Sparks Indian Colony and Burns Paiute Tribe also sued.
In complaints and briefings over the course of more than two years, attorneys for the plaintiffs argued that the Bureau of Land Management failed to fully analyze the project’s impacts on the environment and did not fully consult Native American tribes or weigh concerns raised by other agencies, including the Nevada Department of Wildlife and the Environmental Protection Agency.
Environmental groups had argued the mine would have a harmful effect on populations of Greater sage-grouse, an imperiled bird species with critical breeding ground in the Montana Mountains, affect groundwater quality and undermine air quality standards. Furthermore, they argued federal land managers did not fully inventory impacts in their environmental analysis
But the court said it found these arguments unpersuasive, deferring to the Bureau of Land Management’s analysis and expertise. The court also was not persuaded that federal land managers should have reasonably consulted with the Burns Paiute Tribe and Reno-Sparks Indian Tribe, based on previous indications “that they did not wish to be consulted on projects being considered in a geographic area encompassing the [mine]” and other evidence in court.
Federal land managers sent letters to consult with the Fort McDermitt Paiute and Shoshone Tribe, the Summit Lake Paiute Tribe and the Winnemucca Indian Colony in December 2019, though they did not receive responses before the approval decision was released in 2020.
With one exception, the court said it “otherwise affirms the [agency’s] decision.”
“This decision was not unexpected,” Will Falk, an attorney for the Reno-Sparks Indian Colony, said in an emailed statement Monday. “American law prioritizes mining on public land over all other uses — including Native American spiritual uses. Until that changes, law will be a limited tactic in protecting public land and Native American sacred places. We were prepared for this and the campaign to protect Thacker Pass will move into the next phase. We're not giving up.”
Several groups, including plaintiffs in the case, criticized the permitting decision, saying it was made in a rushed manner that did not fully consider cultural and spiritual connections to the land.
In 2021, elders and traditional members of the Fort McDermitt Paiute and Shoshone Tribe, whose lands are about 50 miles from the mine, formed The People of Red Mountain, or Atsa koodakuh wyh Nuwu in Paiute, to push back against the project, and areas known as Peehee Mu'huh, or “rotten moon,” a reference to a 1800s massacre.
Although the judge did not overturn the federal permitting decision, Du did remand a section of the environmental analysis to the Bureau of Management for further review. That element of the ruling involved the breadth of the Mining Law of 1872, which governs activities on public land.
Du ruled that a 9th Circuit precedent, known informally as Rosemont (because it involves the Rosemont mine in Arizona), required the Bureau of Land Management to determine whether certain mining claims held by Lithium Americas were valid before the mine could occupy about 1,300 acres of federal public land that it intended as a place to store its waste rock and tailings.
In an email, John Hadder, who leads Great Basin Resource Watch, one of the environmental groups involved in the case, said that the mine developer, Lithium Americas, and the agency still had considerable work to do to validate the claims and comply with the ruling.
“The court correctly ruled that BLM violated federal public land law by assuming mining claim rights without evidence, which was a fundamental part of the case,” Hadder wrote.
“[The agency] and the company now have to prove that, for the project approval to be legal, the lands to be buried by 1,300 acres of waste dumps contain valuable minerals, which is [a] very strict test under federal mining laws,” he added.
When judges remand part of a permitting decision because of an agency error, they often vacate the final decision. In this case, however, Du remanded the decision without undoing — or vacating — the final approval. Du reasoned that her limited remand was warranted because, based on evidence in the court record, the agency could likely still support its decision.
In addition, Du found the agency “substantially complied with the applicable legal requirements” and noted that the Rosemont precedent was not issued until after the permit was approved.
Over the past two years, Lithium Americas has worked to address the impact the mine will have on communities near the Thacker Pass: Kings River Valley, Orovada and McDermitt. In 2022, the company entered into a community benefits agreement with the Fort McDermitt Paiute and Shoshone Tribe. It has also pledged to build a new K-8 school in Orovada.
This story was updated at 8:45 a.m. on Feb. 7, 2023 to include a statement from Lithium Americas and more information about the ruling.