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Federal Court declines to vacate ROD for Lithium Americas Thacker Pass project but remands to BLM for consideration of waste issue

The US District Court, District of Nevada has declined to vacate the issuance of the Record of Decision (ROD) by the US Bureau of Land Management (BLM) for Lithium Americas’ proposed Thacker Pass lithium mining project (earlier post) located in Humboldt Country, Nevada. The remanded the case to BLM to determine whether the company possesses valid rights to the waste dump and mine tailings land it intends to use for the project to support BLM’s decision to issue the ROD.

The decision comes in a lawsuit filed by a group of environmental organizations, ranchers and tribes challenging the BLM’s approval of the plan to build the lithium mine. Thacker Pass is the largest known lithium resource in the United States.

The Thacker Pass Mine was approved within a sage grouse Priority Habitat Management Area, which also contains aquifers that feed the handful of desert springs inhabited by a rare freshwater snail – the Kings River pyrg.

The lawsuit challenged BLM’s compliance with three federal statutes in an attempt to halt the development of the mine.

While this case encapsulates the tensions among competing interests and policy goals, this order does not somehow pick a winner based on policy considerations. That is not this Court’s role. 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, based entirely on the contents of the records before the agency at the time of its challenged decision.

This order addresses the parties’ dispositive motions seeking judgment on the merits. The Court explains below its resolution of the pending motions, and, thus, this case. To preview, the Court finds that Ctr. for Biological Diversity v. United States Fish & Wildlife Serv., 33 F.4th 1202 (9th Cir. 2022) (Rosemont) applies. This in turn leads the Court to conclude that BLM’s approval of the Project violated FLPMA as it relates to the approximately 1300 acres of land Lithium Nevada intends to bury under waste rock because BLM did not first make a mining rights validity determination as to those land.

The Court otherwise affirms BLM’s decision, rejecting arguments that the Project will cause unnecessary and undue degradation to the local sage grouse population and habitat, groundwater aquifers, and air quality in violation of FLPMA, that BLM failed to adequately assess the Project’s impacts on air quality, wildlife, and groundwater in violation of NEPA, that BLM failed to adequately consider the Project’s impacts as to the area’s contemporary cultural or religious significance to local tribes also in violation of NEPA, and that BLM unreasonably or in bad faith decided not to consult with Tribal Plaintiffs before approving the Project in violation of the NHPA.

In sum, the Court concludes that BLM’s decision as it relates to approval of land to be used for waste dumps violated FLPMA (43 U.S.C. § 1732(b)) and is therefore arbitrary and capricious under the APA. But the Court otherwise rejects Plaintiff and Plaintiff- Intervenors’ claims.

—Order of the US District Court, District of Nevada, Case Nº 3:21-cv-00080-MMD-CLB

Lithium Americas said it intends to work closely with the BLM to complete the required follow-up. The ruling can be appealed; plaintiffs said they were considering next steps.


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