In a new verdict that halts a metals mine in Nevada, another judge has accepted a U.S. appellate court’s harsher reading of a mining rule that dates back almost 150 years. The verdict may affect a massive lithium mine proposed for the Nevada–Oregon border and potential future mining on public lands throughout the West.
In a case that went back to 2013 and went through two visits to the 9th U.S. Circuit Court of Appeals, Judge Larry Hicks of the U.S. District Court in Reno revoked the U.S. Bureau of Land Management’s permission for Eureka Moly’s proposed molybdenum mine approximately 250 miles (402 kilometers) east of Reno.
According to Hicks, the government’s long-held stance that the 1872 Mining Law extends the same rights acquired via a legitimate mining claim to a nearby property for the dumping of tailings and other waste was overturned by a 9th Circuit judgment in an Arizona case last year.
Due to the court’s determination that such rights do not necessarily extend to the adjacent national forest areas where the firm intended to deposit the waste rock, the mine’s development was halted. Instead, a claim to such lands requires the corporation to prove and the government to verify the presence of rich resources.
Hicks indicated “no substantive distinction” between the Forest Service’s claims in the 9th Circuit ruling on the Arizona mine and the BLM’s arguments about the molybdenum used to strengthen steel.
On March 31, he stated, “BLM cannot skirt the Mining Law requirement that valuable mineral deposits must be found in order to occupy the land.”
Last month, U.S. Judge Miranda Du in Reno ruled that BLM broke the law when it gave the go-light to Lithium Americas’ Thacker Pass mine on the Nevada-Oregon border, using the 9th Circuit case.
However, Du did not go so far as Hicks or the appellate court and overturned BLM’s project approval. She reverted to control of the project to the agency to ascertain whether or not there was enough proof of valuable minerals to establish viable claims. Meanwhile, work on the building has begun.
The San Francisco court will hear the environmentalists‘ appeal of Du’s verdict on lithium mining in June. President Joe Biden’s “clean energy” plan, which aims to hasten the transition from fossil fuels to renewables, relies heavily on lithium, which is used to produce electric car batteries.
Following a decades-long trend, Eureka Moly LLC (EML) claimed it did not plan to permanently occupy the neighboring areas since mining operations at Mt. Hope will cease in 40 years. Hicks countered that the 9th Circuit had similarly rejected this line of reasoning.
“Although EML’s authorization to use the land will expire when the project is complete, the waste rock will remain. Thus, EML’s occupation … will be permanent,” Hicks said.
The “Rosemont (decision) requires that to permanently occupy the land as EML proposes, valuable deposits of minerals must exist.”
According to him, there’s no proof in the paperwork that molybdenite exists in the area, and “BLM admits that it made no attempt to determine whether EML’s mining claims are valid.” This finding by Hicks is encouraging news for environmentalists who are appealing the Thacker Pass decision.
“It’s very significant,” said Roger Flynn, a veteran attorney with the Colorado-based Western Action Mining Project who represents the Great Basin Resource Watch and others in lawsuits opposing the molybdenum and lithium mines.
“All three rulings now say you can’t bury waste there unless you find valuable minerals,” he said. “The Rosemont issue would apply to basically every big mine in the West.”
Flynn believes the following case in this area will include the Stibnite Gold Project in Idaho, which is now being reviewed by the Forest Service and is thus still being prepared for a legal challenge. Leaders in the lithium sector, including Lithium Americas, said environmentalists are overstating the ruling’s impact.
“The Mt. Hope case did not impact Thacker Pass,” claimed Lithium Americas spokesperson Tim Crowley.
“The Thacker Pass and Mt. Hope cases addressed different facts, different legal arguments and had different outcomes,” he wrote in Tuesday’s email to The Associated Press. “The judge in our case thoroughly considered the specific Thacker Pass details in rendering her decision, and the project is now in construction and moving forward. “
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Similarly, American Exploration & Mining Association CEO Mark Compton concurred. “I don’t believe a straight-line comparison can be made between the court decisions on Mt. Hope, Thacker Pass, and Rosemont,” Compton said in an email. “The facts are unique to each case.”
But Great Basin Resource Watch’s executive director in Reno, John Hadder, said Hicks’ judgment lays the ground for appeal arguments in June after Du’s. Hadder said, “Both judges are saying there are illegal actions here.” If Lithium Americas’ proposal is illegal, then why did Du give the go-light for work to begin?
“It violates the law, but there’s no repercussion. They can still go forward with the illegal activity. It doesn’t make sense,” Hadder said. “We’re hoping the 9th Circuit will not only validate the ruling but also vacate the permit.”
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