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COM

DOMINIC M. CAROLLO, MANAGING ATTORNEY

EMAIL: dcarollo@carollolegal.com

February 11, 2021

Via Email and Certified Mail, Return Receipt Requested

Ester M. McCullough, District Manager Receipt No. 7018 1830 0002 3114 2904
Bureau of Land Management Winnemucca District
Humboldt River Field Office
5100 E. Winnemucca Blvd.
Winnemucca NV 89445

Michael D. Nedd, Deputy Director Receipt No. 7018 1830 0002 3114 2850
Bureau of Land Management, National Office
760 Horizon Drive,
Grand Junction, CO 81506

Scott de la Vega, Acting Secretary of Interior Receipt No. 7018 1830 0002 3114 2881
Department of the Interior
1849 C Street, N.W.
Washington DC 20240

Jonathan Evans, CEO and President Receipt No. 7018 1830 0002 3114 2898
Lithium Americas
300 – 900 West Hastings Street
Vancouver, BC V6C 1E5 Canada

Alexi Zawadzki, President Receipt No. 7018 1830 0002 3114 2874
Lithium Nevada Corp.
3685 Lakeside Drive
Reno, NV 89509

Re: Sixty-Day Notice of Intent to Sue for Violations of the Endangered Species
Act Regarding Impacts of the Thacker Pass Lithium Mine Project on
Threatened Lahontan Cutthroat Trout

Dear Sirs or Madam:

On behalf of Edward Bartell and Bartell Ranch, LLC (collectively, “Bartell Ranch”), please
consider this notice of violations of Section 7 and Section 9 of the Endangered Species Act
(“ESA”) pursuing to the ESA’s citizen suit provision. As described more fully below,
authorization and development of the Thacker Pass Lithium Mine Project, by and through Ms.
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February 11, 2021
Page 2

McCullough’s January 15, 2021 Record of Decision (“ROD”), violates and/or will violate Section
7 of the ESA for failure to initiate informal or formal consultation with respect to ESA-listed
species that inhabit streams within project area, the Lahontan Cutthroat Trout (“LCT”). As a result
of the failure to consult, the actions authorized in the ROD are likely to “jeopardize” LCT in further
violation of Section 7. Finally, in the absence of formal consultation, the issuance of a lawful
Biological Opinion and accompanying Incidental Take Statement (“ITS”), the actions authorized
in the ROD are likely to cause unlawful “take” of LCT in violation of Section 9 of the ESA.

Lithium Americas Corporation (“LAC”) and/or Lithium Nevada Corporation (“LNC”), a

subsidiary of LAC, is the owner and applicant behind the Thacker Pass Mine Plan of Operations
(“Thacker Pass Plan”), analyzed by the Bureau of Land Management (“BLM”) in the Thacker Pass
Lithium Mine Project Environmental Impact Statement (DOI-BLM-NV-W010-2020-0012-EIS),
and the subsequent associated Final Environmental Impact Statement (“FEIS”) and ROD. The
Thacker Pass Mine will be located entirely on public land administered by BLM in Humboldt
County, Nevada. The project proposes to pump significant amounts of groundwater that threatens
to reduce groundwater tables, springs, and, ultimately, streamflows that support LCT and LCT
habitat, including in Pole Creek and Crowley Creek.

Pursuant to 16 U.S.C. § 1536(a)(2), a federal agency that authorizes, funds, or carries out
an activity that may affect a listed species must consult with the appropriate Service regarding the
impacts of that activity to ensure that it does not jeopardize the continued existence and recovery
of the species or result in the destruction or adverse modification of critical habitat. Here, no such
consultation has been undertaken with the U.S. Fish and Wildlife Service (“FWS”) with respect to
LCT and the species’ sensitive habitat in Pole Creek and Crowley Creek. This constitutes a
procedural violation of Section 7 of the ESA, requiring vacatur or suspension of the ROD unless
or until BLM satisfies its duty to consult with FWS regarding impact to LCT and LCT habitat.
Additionally, as a direct result of BLM’s failure to comply with its consultation duties, the BLM
approval of the ROD threatens to jeopardize LCT in violation of Section 7 and cause unlawful
“take” of a listed species in violation of Section 9 of the ESA.

This letter describes the basis for the liability of Director McCullough, BLM, and/or LAC
LNC, for violations of Section 7 and Section 9 of the ESA and, pursuant to 16 U.S.C. § 1540(g),
this letter constitutes notice of Bartell Ranch’s intent to bring a citizen suit to require compliance
with the ESA and enjoin violations of the ESA as described herein, if the violations are not fully
addressed and rectified in the next 60 days.

I. LEGAL BACKGROUND

Under ESA Section 7(a)(2), “[e]ach federal agency shall ... insure that any action
authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the destruction or adverse
modification of habitat of such species.” 16 U.S.C. § 1536(a)(2) (emphasis added). The
obligation to “insure” against a likelihood of jeopardy or adverse modification requires the
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February 11, 2021
Page 3

agencies to give the benefit of the doubt to endangered species and to place the burden of risk
and uncertainty on the proposed action. See Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir.
1987). The substantive duty imposed by § 7(a)(2) is constant, relieved only by an exemption
from the Endangered Species Committee. 16 U.S.C. § 1536(h); Conner v. Burford, 848 F.2d
1441, 1452 n.26 (9th Cir. 1988). Compliance with the procedural requirements of the ESA—
making the determination of the effects of the action through the consultation process—is
integral to compliance with the substantive requirements of the ESA.

Section 9 of the ESA prohibits BLM from authorizing actions that may result in “take” of
an endangered species without first obtaining a valid incidental take statement from FWS. 16
U.S.C. § 1538(a)(1). FWS may only issue an incidental take statement when take incidental to a
federal agency action will not jeopardize the continued existence of listed species or destroy or
adversely modify their critical habitat. 16 U.S.C. § 1536(b)(4). The ESA prohibition on “take” of
a listed species is defined to includes harassing, harming, wounding, or killing any listed species.
Harm is further defined to include significant habitat modification or degradation that kills or
injures a listed species by significantly impairing essential behavioral patterns, including
breeding, rearing, migrating, feeding, or sheltering. 50 C.F.R. § 17.3.

LCT were listed under the ESA as endangered in 1970, and reclassified as threatened in
1975, which is the classification they maintain today.

II. DISCUSSION

The Thacker Pass Mine Plan proposes what will likely be the largest lithium mine in the
continental United States, in addition to necessary processing and ancillary support facilities, and
the water use LNC seeks in order to operate such a project. The mine itself will be located
entirely on BLM land, approximately 17 miles west-northwest of Orovada, Nevada. In
September 2019, LNC submitted its Thacker Pass Mine Plan to the Winnemucca District Office
of the BLM, and the notice of intent to initiate a Draft EIS was issued in January, 2020. The
Notice of Availability for BLM’s Draft EIS was issued at the end of July, 2020, followed by a
45-day comment period. The FEIS was issued on December 4, 2020, with another 30-day
comment period thereafter. Bartell Ranch submitted comments to both the Draft EIS and the
FEIS, raising numerous issues and objecting to many different errors and omissions present in
both the draft and final versions. Among these objections and issues raised were Bartell Ranch’s
objection to BLM’s failure to undertake consultation with FWS, as required under Section 7 of
the ESA, BLM’s incorporation of objectively incorrect baseline streamflow data into the FEIS,
as well as the harm that will occur with respect to LCT as a result of the proposed mining
operation’s water use. Director McCullough, on behalf of BLM, signed the ROD on January 15,
2021.

The sprawling 17,933-acre Thacker Pass Mine area of operations is to be located in a

highly-sensitive ecological area that is famously dry, with limited and delicate water resources.
The mine will require a huge open pit that will deplete aquifers, and the separate pumping of an
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February 11, 2021
Page 4

outstanding amount of groundwater for its operations; 2,600 acre-feet annually during Phase 1,
and 5,200 acre-feet annually during Phase 2. Additionally, the groundwater reserves within the
“Orovada Subarea” (where this pumping will take place) is already overallocated by
approximately 30,271 acre-feet a year. Furthermore, as is well-established in the academy of
hydrological science, as well as within Ninth Circuit case law, excessive groundwater pumping
in an already overallocated basin is inextricably linked to reductions in surface flows on streams
within the hydrological nexus.

Immediately north of the proposed mine site are several perennial streams known to be
inhabited by LCT, the presence of which is well-understood and comprehensively documented
throughout decades of catalogued research and reports completed by the FWS and the Nevada
Department of Wildlife (“NDOW”). Two of the streams immediately to the north of the
proposed mine location where LCT are known to inhabit are Pole Creek and Crowley Creek. For
NDOW’s 2012 Lahontan Cutthroat Trout Study for the Western Region, one of the specific
objectives of the study was identifying genetically-pure Lahontan Cutthroat Trout in Crowley
Creek via electroshocking, and transporting them in aerated tanks to various reaches of Pole
Creek where they were released to supplement the Pole Creek population. This effort was
described as one “to salvage and protect the last pure LCT within the Crowley Creek drainage,”
which was undertaken through “extensive genetic sampling and mapping, salvaging pure LCT
and reintroducing them into the Pole Creek tributary to Crowley Creek[,]” and confirms the
existence and importance of the Pole Creek Lahontan Cutthroat Trout population.

In the FWS 1995 Recovery Plan for the Lahontan Cutthroat Trout, “[r]eduction and
alteration of stream discharge” is listed as the very first of the “[m]ajor impacts to LCT habitat
and abundance[.]” Typical of all cutthroat trout subspecies, LCT are obligatory stream-spawning
salmonids that require steady streamflow to survive. Accordingly, the truly monumental volume
of groundwater pumping associated with this proposed mining operation poses an actual and
imminent threat to streamflow levels on nearby perennial streams, and thereby the ESA-listed
LCT that inhabit them. The survival of LCT in these small desert streams depends on streamflow
levels being maintained at current levels (current levels which the FEIS also failed to correctly
identify), and allowing the proposed mining project and its associated pumping will likely
jeopardize the recovery and continued existence of LCT and “take” LCT in violation of Section
7 and Section 9 of the ESA.

Materially, the FEIS openly concedes that the mine’s proposed pumping volume has “the
potential for mine related groundwater aquifer drawdown,” and that “[w]ater produced and used
by the mine from the proposed production wells could also affect surface water stream flows in
nearby perennial and intermittent streams or springs.” Despite the mine’s potential to reduce
streamflow on nearby perennial and ephemeral streams, BLM offered the following terse
statement on its responsibility to consider impacts of reduced streamflows on LCT under the
ESA:
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February 11, 2021
Page 5

“[e]ffects on LCT are not anticipated to occur from the project, therefore, no formal
Section 7 consultation was required.”

Insofar as it has been disclosed to the public in the NEPA process, including the FEIS, this single
sentence is the entirety of BLM’s consideration of its obligations under the ESA in considering
impacts to LCT. BLM’s explanation of its decision to not consult with FWS is wholly
inadequate and patently unlawful.

Further, BLM’s conclusions that streamflow impacts to Pole Creek and Crowley Creek
would not occur is arbitrary and capricious. BLM opted for its proposed Alternative A, which
extends the 10-foot threshold drawdown area only a mere 1.4 miles from the project area. As
BLM notes in FEIS appendix R, pg. R 2, “BLM recognizes that drawdowns of less than 10 feet
could reduce flows in perennial water sources that are controlled by discharge from the regional
groundwater flow system.” Clearly, by BLM’s own admission, impacts to streamflow are not
limited to the arbitrary 10-foot drawdown contours. Indeed, as is noted in FEIS Appendix P
Part 1, pg. 64, springs that flow into Lower and Middle Pole Creek (SP-036, SP-039 and SP-040)
were specifically identified that they “may experience some impact.” This admission alone
undermines BLM’s position that impacts to LCT would not occur. It mandates Section 7
consultation.

Exacerbating the harm of the arbitrary 1.4 mile 10-foot drawdown area is the fact that
BLM’s baseline surface water flow data (incorporated into the FEIS) is objectively incorrect.
These data errors categorically undermine the modeling incorporated into the FEIS, which
concludes that the mine’s groundwater pumping-caused “drawdown [to surface flows] would
result in reductions in baseflow of up to approximately 4 percent in Thacker Creek, 3 percent in
Crowley Creek and less than 1 percent reduction in the upper and middle reaches of Pole Creek.”
In Appendix P of the FEIS (Water Quantity and Quality Impacts Assessment Report, prepared
by Piteau Associates, contracted by LAC) BLM accepts a dramatic mischaracterization of Pole
Creek as “an ephemeral stream” with sections that it “may” flow perennially, “but are not
continuous year-round.” Not only is this characterization of Pole Creek (as an ephemeral stream,
but one with non-continuous perennial reaches) a completely nonsensical and contradictory
statement in and of itself, but it is well-established in studies and reports completed by NDOW
that Pole Creek is a perennial stream that has resident LCT.

BLM also falsely labels Lower Pole Creek as ephemeral in the FEIS. While Lower Pole
Creek does go dry, it often flows very late in the season, which is wildly inconsistent with an
ephemeral stream (one that dries up shortly after a precipitation/snowmelt event). Indeed,
Plaintiffs documented flow in Lower Pole Creek on September 2 of 2020, which was a drought
year. This distinction is important because, as the FEIS notes on pg. 4-47, LCT can get washed
down into these reaches “within the [Thacker Pass] project boundaries” during high flows.
Spring fed flows in Lower Pole Creek are important because they allow additional time for LCT
to return to perennial reaches of Pole Creek or Crowley Creek. According to the FEIS
Appendix P Part 1 the Thacker Pass Project will have major impacts on Lower Pole Creek,
ESA 60-day Notice of Intent to Sue
February 11, 2021
Page 6

depleting Lower Pole Creek flow by about 58% (comparing model predicted baseflows with
model predicted flow declines)

In sum, contrary to the contradictory statements and egregiously flawed baseline data and
modeling in the FEIS, the Thacker Pass mining project will reduce streamflows in LCT habitat,
including Pole Creek and Crowley Creek. BLM’s failure to consult with FWS regarding the
potential impacts to LCT and LCT habitat, associated with reductions in streamflows, in issuing
the ROD is a violation of Section 7 of the ESA. Further, BLM’s failure to consult makes it
likely that implementation of the project under the ROD will cause “jeopardy” in further
violation of Section 7 and “take” in violation Section 9.

III. CONCLUSION

In light of the ESA violations outlined above, Bartell Ranch demands that BLM
immediately: (1) withdraw the FEIS and ROD pending the gathering of complete and accurate
baseline data and the completion of credible analysis and studies on the impacts of the project’s
groundwater pumping on streamflows supporting LCT; and (2) engage in formal ESA
consultation with FWS. If these steps are not taken within the next 60 days, Bartell Ranch will
file suit in federal court seeking to compel consultation and to enjoin current and future
violations of Section 7 and Section 9 of the ESA, along with recovery of Bartell Ranch’s
litigation costs and attorney fees pursuant to 16 U.S.C. § 1540(g).1

If you have any questions about this notice, please feel free to contact me.

Sincerely,

Dominic M. Carollo
Attorney at Law

MQ/wjc

cc: Client

1
Contemporaneously with serving this 60-day Notice letter, Bartell Ranch has filed a complaint in Nevada Federal
District Court, alleging violations of the National Environmental Policy Act, Federal Land Policy and Management
Act and Administrative Procedures Act. If the ESA violations alleged in this letter are not addressed within 60 days,
Bartell Ranch will amend the complaint to incorporate some or all of the ESA violations alleged herein.