New emergency bid to appeal, block huge Nevada lithium mine

Feb 21, 2023, 1:38 PM | Updated: 6:50 pm

FILE - Exploration drilling continues for Permitting Lithium Nevada Corp.'s Thacker Pass Project on...

FILE - Exploration drilling continues for Permitting Lithium Nevada Corp.'s Thacker Pass Project on the site between Orovada and Kings Valley, in Humboldt county, Nev., shown beyond a driller's shovels in the distance on Sept. 13, 2018. Conservationists are seeking an emergency court order to block construction of a lithium mine near the Nevada-Oregon line. The new request filed Tuesday, Feb. 21, 2023, in federal court in Reno comes after a judge there directed the U.S. Bureau of Land Management to revisit part of its approval of the plans but allowed construction to go forward in the meantime. (Suzanne Featherston/The Daily Free Press via AP, File)

(Suzanne Featherston/The Daily Free Press via AP, File)

RENO, Nev. (AP) — Conservationists are seeking an emergency court order to block construction of a Nevada lithium mine after a U.S. judge directed a federal agency to revisit part of its approval of the plans but allowed construction to go forward in the meantime.

Four environmental groups want U.S. District Judge Miranda Du in Reno to temporarily halt any work at a subsidiary of Lithium Americas’ mine near the Oregon border until they can appeal her ruling earlier this month to the 9th U.S. Circuit Court of Appeals.

They filed on Tuesday a formal notice of their intent to appeal to the San Francisco-based circuit court and an emergency motion for injunction in Reno pending the appeal. An Oregon tribe that filed a new, separate lawsuit to block the mine last week joined the notice of appeal.

“This mine should not be allowed to destroy public land unless and until the Ninth Circuit has determined whether it was legally approved,” said Talasi Brooks, a lawyer for the Western Watersheds Project.

Du gave the U.S. Bureau of Land Management until the end of Wednesday to respond to the motion or reach an agreement with the conservation groups to postpone any construction until she rules on their request for an emergency injunction.

“Based on the urgency implied by environmental plaintiffs’ representation that Lithium Nevada intends to start construction on February 27 … the court sets an expedited briefing schedule,” she wrote in a brief order late Tuesday.

The company said last week that construction at the Thacker Pass Lithium Mine was “imminent” after Du ruled Feb. 6 the bureau had acted legally — with one possible exception — when it approved plans for the mine in January 2021.

A spokesperson for Lithium Americas said Tuesday they were confident the appellate court would uphold the project’s approval.

“Since we began this project more than a decade ago, we have been committed to doing things right,” Tim Crowley, the company spokesperson, said in an email to The Associated Press. “The recent U.S. District Court ruling definitively supported BLM’s consultation process, and we are confident the ruling will be upheld.”

Du’s earlier ruling was the latest in a series of high-stakes legal battles pitting environmentalists against so-called “green energy” projects the Biden administration is pushing over the objections of conservation groups, tribes and others.

The White House says the mine planned by Lithium Nevada Corp., a subsidiary of Lithium Americas, is critical to ramped-up efforts to produce raw materials for electric vehicle batteries. Opponents say it would harm wildlife habitats, degrade groundwater and pollute the air.

“It symbolizes BLM’s wrecking ball approach to ‘green’ energy on public lands,” Katie Fite of WildLands Defense said Tuesday.

Du ordered the bureau Feb. 6 to go back and determine whether the company had established valid mining rights on 1,300 acres (526 hectares) of neighboring land, where it plans to bury millions of tons of waste rock that would be removed from the open pit mine deeper than the length of a football field.

But she stopped short of granting the opponents’ request at that time to block any work at the site until the validity of the claim was established under the Mining Law of 1872 on the adjacent lands about 200 miles (322 kilometers) northeast of Reno.

“There’s no evidence that Lithium Nevada will be able to establish valid mining claims to lands it plans to bury in waste rock and tailings, but the damage will be done regardless,” Brooks said in a statement Tuesday announcing the filing of the emergency request for an injunction.

Du said in her Feb. 6 ruling it was a rare instance where it was proper to stop short of vacating an agency’s approval of an overall project to allow the bureau to re-examine the adequacy of one element of the plan — the disposal of the waste rock.

She made clear her ruling incorporates part of a recent ruling by the 9th Circuit in a fight over the 1872 law in an Arizona case that could prove more onerous to mining companies that want to dispose of their waste on neighboring federal lands.

In that case, the San Francisco-based appellate court upheld an Arizona ruling that the Forest Service lacked authority to approve Rosemont Copper’s plans to dispose of waste rock on land adjacent to the mine it wanted to dig on a national forest southeast of Tucson. The service and the Bureau of Land Management long have interpreted the mining law to convey the same mineral rights to such lands.

General Motors Co. announced Jan. 31 it had conditionally agreed to invest $650 million in Lithium Americas in a deal that will give the company exclusive access to the first phase of the Thacker Pass mine. The equity investment in two phases was contingent on the project clearing legal challenges in court in Reno.

Lithium Americas said last week that Du’s Feb. 6 ruling satisfied the completion of the first phase and that as a result, GM had purchased 15 million common shares of Lithium Americas at $21.24 per share on Feb. 16 for a total of $320 million.

Lithium Americas estimates that the mine can support production of up to 1 million electric vehicles annually. The company expects production to begin in the second half of 2026.

In the Feb. 6 ruling, Du also denied for the third time relief sought by Native American tribes who argued it could destroy a sacred site where their ancestors were massacred in 1865. Last week, three tribes filed a separate lawsuit claiming that the bureau has misrepresented its claims that it’s met its legal obligation to consult with tribes about potential impacts to historical and cultural values near the mine site.

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New emergency bid to appeal, block huge Nevada lithium mine