By Daniel Rothberg
District Court Judge Miranda Du again denied a petition to delay preliminary excavations at the planned Thacker Pass lithium mine on Friday, a decision that means work at the mine site can continue but one that could also set up a conflict with demonstrators camped in the area.
Attorneys for the Reno-Sparks Indian Colony, the Burns Paiute Tribe and the People of Red Mountain had sought a preliminary injunction to prevent the company developing the mine, Lithium Nevada, from starting on digging that they said could destroy artifacts and remains.
Ground disturbance in the area would cause irreparable harm, the attorneys argued in court last week, noting that Indigenous communities in the Great Basin consider Peehee mu’huh, or Thacker Pass, the site of a massacre and an area for religious ceremonies, sacred.
The digging is part of a cultural survey that the company plans to conduct in accordance with a Historic Properties Treatment Plan (HPTP), approved by federal land managers and a requisite for beginning mine construction. The U.S. Bureau of Land Management is working on issuing a permit, under the Archaeological Resources Protection Act, to conduct the cultural survey.
In a technical legal ruling on Friday, Du wrote that the tribes’ arguments did not meet the high legal standards needed to issue a preliminary injunction as the underlying case is litigated.
“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,” Du wrote, noting that the court has not ruled on the merits of the claims.
Du wrote that she plans to rule on the merits of the case and claims that the federal government fast-tracked an environmental approval of the mine before construction begins on the lithium project. The Thacker Pass project is one of several mines seeking permits to operate amid a national push to secure domestic supplies of lithium, a key ingredient for electric vehicles.
The legal issue, examined by Du in the order on Friday, was whether the federal agency had erred in meeting its requirement to consult with Native American tribes on mining projects that are connected to their ancestral lands. The agency, charged with managing federal public land across Nevada, said that it made a good-faith and reasonable effort to consult with tribes.
A government attorney told the court that it initiated formal consultation with the Fort McDermitt Paiute and Shoshone Tribe, the Summit Lake Paiute Tribe and the Winnemucca Indian Colony.
Attorneys for the tribes argued that the agency’s formal consultation should have included other Indigenous communities in the Great Basin who are connected to the land near the mine site.
But the judge appeared persuaded by evidence, presented at the hearing, that the Reno-Sparks Indian Colony and the Burns Paiute Tribe had “disclaimed an interest” in the Thacker Pass area based on regional planning documents and past communications. In addition, the order noted that extensive ground disturbance had already taken place in the area.
Since the project was approved by the Trump administration in January, a group of protesters with the group Protect Thacker Pass has camped at the mine site. The protesters have indicated that they are prepared to take direct action to prevent any disturbance from occurring.
In late July, Du denied a request for an injunction based on different grounds.