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Feds Must Act on Status of Rare Wildflower Near Lithium Mine (1)

April 22, 2021, 2:15 PMUpdated: April 22, 2021, 7:20 PM

The U.S. Fish and Wildlife Service has 30 days to decide whether to list the Tiehm’s buckwheat as endangered under federal law, a Nevada federal court ruled in a win for a group challenging an ioneer Corp. mining project’s impact on the flower.

The Center for Biological Diversity, the plaintiff in the lawsuit, sufficiently showed an “emergency posing a significant risk to the well-being” of the rare wildflower under the Endangered Species Act, according to the U.S. District Court for the District of Nevada.

The plant is located at the site of ioneer’s proposed open-pit lithium and boron mine, which would destroy up to 90% of the plant’s population in western Nevada, the group says.

An estimated 40% of the species was mysteriously damaged or destroyed between July and September 2020. The Fish and Wildlife Service said on July 22, 2020, that the group provided “substantial information” that protecting the wildflower “may be warranted,” but it didn’t issue an emergency listing.

The ESA says only the Secretary of the Interior can bypass the usual listing procedures in emergency situations, the court said. Therefore, the group had no right to petition the agency for an emergency listing, according to Wednesday’s ruling.

Even though the Center for Biological Diversity can’t request an emergency listing, that doesn’t mean an emergency can’t exist, the court said.

The agency itself acknowledged it has violated the ESA by failing to issue a 12-month finding on whether it plans to list Tiehm’s buckwheat as endangered, according to the ruling.

“Indeed, by the time of this order, more than enough time has passed” for a finding on the group’s petition, wrote Judge James C. Mahan.

The group also petitioned the Bureau of Land Management to protect the species from further destruction. Because the petition was filed only 12 days before the lawsuit, the agency’s ongoing review doesn’t amount to an unreasonable delay, the court said.

“We’re thrilled a federal judge agrees that Tiehm’s buckwheat is facing a dire emergency,” said Patrick Donnelly, Nevada state director at the Center.

“The federal government now has to follow through and protect this species before ioneer’s mine drives it to extinction,” Donnelly said in a statement Wednesday.

A company representative expressed optimism in the federal agency’s review of its project.

“We are confident that the science strongly supports the coexistence of our vital lithium operation and Tiehm’s buckwheat,” said Bernard Rowe, managing director of ioneer, in a statement Thursday.

“We know by working together, we can ensure we help meet the needed climate goals of today while protecting and uplifting Tiehm’s buckwheat in its habitat,” Rowe said.

Kemp Jones LLP represented the group, which also represented itself.

The Justice Department represented the federal government. Lewis Roca Rothgerber Christie LLP represented Ioneer.

The case is Ctr. for Biological Diversity v. Bernhardt, D. Nev., No. 2:20-cv-01812, 4/21/21.

(Adds comments from ioneer representative in new tenth, 11th, and 12th paragraph and some additional context to first paragraph. )

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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