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Litigation over the 1865 Massacre The inadequacy of BLMs consultation with Indigenous peoples during the permitting process for the Thacker Pass mine is underscored by the fact that both the original record of decision (ROD) issued by BLM and the final environmental impact statement (EIS) make no mention of the 1865 massacre so central to Indigenous history and narratives over Thacker Pass.[317] In their court filings challenging BLMs permitting of the mine, Tribes argued the evidence of a massacre occurring within the project area meant BLM should have consulted them during the permitting process and that construction of the mine risks disturbing the massacre site and so causes the Tribes irreparable harm.[318] BLM, however, stated it first became aware of Tribes concerns regarding the massacre in June 2021, after the final record of decision (ROD) approving the mine was issued in January 2021.[319] Tribes disputed this, arguing that despite BLMs lack of consultation with Tribes during the permitting process, it still should have known about the massacre in the area.[320] The district court rejected these arguments, finding that an 1868 field survey referring to a massacre does not show a massacre happened within the project area.[321] The court also referenced a map, prepared by an environmental engineer who works for Lithium Nevada, showing that the likely location of remains described in the 1868 field notes falls outside the Thacker Pass mine project area.[322] These findings were critical to the district courts decision that the Tribes would not suffer irreparable harm and so should not win a preliminary injunction to stop the project.[323] RSIC and PRM subsequently presented additional historical evidence indicating injured people fled in the direction of, and likely ultimately died, within the boundaries of the project site.[324] The district court found, however, that while this additional evidence further highlights the shameful history of the treatment of Native Americans by federal and state governments, it does not persuade the Court that it should reconsider the irreparable harm findings of the Prior Order.[325] The district court ruled Tribes should have presented this evidence soonerexplaining that it was more than 100 years old, thus availablestated that the new evidence does not definitely establish that a massacre occurred within the Project area, and then concluded that this new evidence was too speculative to show irreparable injury, the legal threshold required for the court to take action in the Tribes favor.[326] Lithium Americas referenced these court decisions in its letters to Human Rights Watch, repeatedly citing court decisions indicating no human remains or funerary items were found in the project site,[327] and stated: The evidence concluded, and a judge agreed, that the site of the massacre is situated several miles from the Project.[328] The legal threshold required, however, for considering the additional evidence of the massacre submitted by the Tribes in the litigation meant the district court did not reach a factual finding on whether the massacre did or did not occur in the project site
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