Bartell Ranch LLC v. McCullough
| Decision Date | 03 September 2021 |
| Docket Number | Case No. 3:21-cv-00080-MMD-CLB |
| Citation | 558 F.Supp.3d 974 |
| Parties | BARTELL RANCH LLC, et al., Plaintiffs, v. Ester M. MCCULLOUGH, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Dominic Carollo, Pro Hac Vice, Carollo Law Group LLC, Roseburg, OR, O. Kent Maher, O. Kent Maher Attorney, Winnemucca, NV, for Plaintiffs Bartell Ranch LLC, Edward Bartell.
Christopher Mixson, Kemp Jones LLP, Las Vegas, NV, Roger Flynn, Pro Hac Vice, Lyons, CO, Talasi Brooks, Pro Hac Vice, Western Watersheds Project, Boise, ID, for Plaintiff Western Watersheds Project.
Christopher Mixson, Kemp Jones LLP, Las Vegas, NV, Roger Flynn, Pro Hac Vice, Jeffrey C. Parsons, Western Mining Action Project, Lyons, CO, for Plaintiffs Wildlands Defense, Great Basin Resource Watch, Basin and Range Watch.
Arwyn Carroll, Leilani E. Doktor, Department of Justice, Washington, DC, for Defendants.
Plaintiffs1 and Intervenor-Plaintiffs2 in this consolidated case challenge the Bureau of Land Management of the U.S. Department of Interior3 ("BLM")’s approval of Intervenor-Defendant Lithium Nevada Corporation's ("Lithium Nevada") plan to build a lithium mine near Thacker Pass, Nevada (the "Project") under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"), the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 - 61, the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701 - 1787, and the National Historic Preservation Act, 54 U.S.C. §§ 300101 ("NHPA"). (ECF Nos. 1, 46, 83.) See also Western Watersheds Project, et al. v. Bureau of Land Management of the U.S. Department of the Interior, et al. , Case No. 3:21-cv-00103-MMD-CLB, ECF No. 1 (D. Nev. Filed Feb. 26, 2021) (since consolidated into this case). Before the Court is the Tribes’4 motion for a preliminary injunction requiring BLM to engage in further consultation under the NHPA with the Tribes before BLM and Lithium Nevada may proceed with an archeological survey of the Project area known as the Historic Properties Treatment Plan ("HPTP"). (ECF No. 45 ("Motion").) Environmental Plaintiffs do not oppose, and indeed encourage the Court to grant the Motion. (ECF No. 61.) Rancher Plaintiffs did not file a response to the Motion. Defendants and Lithium Nevada oppose the Motion.5 (ECF Nos. 65, 66.) The Court held a hearing on the Motion on August 27, 2021. (ECF No. 89 (the "Hearing").)
Primarily because the Tribes have not shown they are likely to prevail on their claim that BLM's decision not to consult them on the Project was unreasonable or made in bad faith, have not presented sufficiently specific evidence of irreparable harm that will likely occur if the HPTP proceeds, and as further explained below, the Court will deny the Motion. However, this order does not resolve the merits of the Tribes’ claims. Moreover, in considering the Tribes’ equitable relief request, the Court is not unpersuaded by the Tribes’ broader equitable and historical arguments, but the Court must operate within the framework of the applicable laws and regulations.
The Court first incorporates by reference the factual background it included in its order denying the Environmental Plaintiffs’ preliminary injunction motion in the Western Watersheds case subsequently consolidated into this one and does not recite it here. See Western Watersheds , Case No. 3:21-cv-00103-MMD-CLB, ECF No. 48 ("July 23 Order") at 2. The Background provided there explained the documents BLM issued regarding its ultimate approval of the Project.
The Project is an open-pit lithium mine in the Thacker Pass basin area of Northeastern Nevada. (ECF No. 65-1 at 8.) The Project area "includes 17,933 acres of land[,]" but the "total disturbance footprint would be approximately 5,695 acres[.]" (Id. ) For illustrative purposes, here is a map of the Project area proffered by Lithium Nevada without objection from any other party.
Construction of the mine has not yet started. The Tribes seek to enjoin Defendants from proceeding with the HPTP, a preliminary step that must be completed before Lithium Nevada may proceed with actually starting construction on the mine. The Court incorporates by reference here its description of the HPTP provided in the July 23 Order. See Western Watersheds , Case No. 3:21-cv-00103-MMD-CLB, ECF No. 48 at 6-7. To reiterate, the HPTP was prepared in conjunction with the Nevada State Historic Preservation Officer ("SHPO"). (ECF No. 65-14 (the HPTP).) The HPTP will be carried out by a contractor paid by Lithium Nevada. (Id. at 3.) Before the contractor may begin carrying out the HPTP, BLM must issue the contractor a permit under the Archaeological Resources Protection Act ("ARPA"). (Id. at 44.) As of the date of the Hearing, BLM had not yet issued the ARPA permit, as BLM remained in consultation with the Tribes and other Native American tribes about the HPTP.
Because the Motion focuses on BLM's consultation with Native American tribes under Section 106 of the NHPA, BLM stated in the Record of Decision approving the Project (ECF No. 65-1 ("ROD")) that it began consultation with tribal governments about the Project beginning in October 2018, and specifically sent letters initiating formal consultation under Section 106 with the "McDermitt Paiute and Shoshone Tribe, the Pyramid Lake and Summit Lake Paiute Tribes, and Winnemucca Indian Colony tribes" in December 2019. (Id. at 10.) BLM further states in the ROD that it mailed copies of the various documents associated with the NEPA process to these three tribes in partial compliance with its Section 106 obligations. (Id. ) BLM also stated in the ROD that "[n]o comments or concerns have been raised during formal government to government consultation for the Project by the tribes." (Id. )
However, BLM did not engage in consultation about the Project with RSIC or the Burns Paiute Tribe before issuing the ROD in January 2021. (ECF Nos. 65 at 23-25, 65-1.) The reasonableness of this decision is the focus of the parties’ arguments regarding the Tribes’ likelihood of success on the merits of their claims under the NHPA, and the Court discusses both the parties’ arguments and the evidence they have proffered to support those arguments in detail in Section IV.A. below. In June 2021, the Tribes sent BLM letters raising concerns about the Project. (ECF Nos. 65-18.) This was the first time the Tribes raised their concerns about the Project with BLM.
Federal Rule of Civil Procedure 65 governs preliminary injunctions. " ‘An injunction is a matter of equitable discretion’ and is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ " Earth Island Inst. v. Carlton , 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). To qualify for a preliminary injunction, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm; (3) that the balance of hardships favors the plaintiff; and (4) that the injunction is in the public interest. See Winter , 555 U.S. at 20, 129 S.Ct. 365. A plaintiff may also satisfy the first and third prongs under a "sliding scale" approach by showing serious questions going to the merits of the case and that a balancing of hardships tips sharply in plaintiff's favor. See All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1134-35 (9th Cir. 2011) (). The plaintiff, however, must still show a likelihood of irreparable harm and that an injunction is in the public interest. See id. at 1135.
The Court first addresses several threshold issues, then the parties’ arguments as to likelihood of success on the merits, and then irreparable harm. Because the Tribes have not made a sufficient showing on the first two Winter factors, the Court does not address the third and fourth factors. See id. (). Further, because the Court will deny the Motion, it does not address the parties’ arguments as to whether the Tribes should be required to post a bond. (ECF Nos. 45 at 21, 66 at 25.)
Lithium Nevada argued both in its briefing and at the Hearing that the Tribes’ claims are not ripe because BLM has not yet issued the ARPA permit. (Id. at 20-21.) The Court addresses this issue first because it arguably6 goes to the Court's jurisdiction to entertain the Tribes’ claims. See Bishop Paiute Tribe v. Inyo Cty. , 863 F.3d 1144, 1153-54 (9th Cir. 2017) (). However, both Defendants and Lithium Nevada also conceded at the Hearing that the Tribes’ consultation rights as part of the ARPA process are more limited than their consultation rights under the NHPA. But more importantly, the Tribes challenge BLM's decision to issue the ROD in contravention of the NHPA in this case, not any decision related to the ARPA process. (ECF Nos. 46 at 3, 83 at 2.) Indeed, the Court understands Lithium Nevada's ripeness argument as more of an argument that the consultation BLM is engaging in with the Tribes under the ARPA process may somewhat mitigate the Tribes’ proffered irreparable harm. The Court finds the Tribes’ claims and Motion are ripe.
Moving on to another threshold issue, Defendants and Lithium Nevada argue the People lack prudential standing to assert a claim under the NHPA because they are members of the Fort McDermitt Paiute Shoshone Tribe, who was consulted here, are not a federally recognized tribe who must be consulted, and did not affirmatively request consultation before the ROD issued. (ECF Nos....
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