I have read the BLM response to the Motion for Preliminary Injunction by the three tribes. I was mainly interested to see whether the BLM made a “reasonable and good faith” effort to identify tribes for consultation. I found the following most interesting:

·      BLM has consulted with several tribes, including the RSIC, on several occasions over the past 15 years and at no time has any issue ever been raised in relation to cultural, religious or historical significance at TP.

·     The RSIC and the Burns Paiute Tribe were consulted in connection with the Winnemucca Resource Management Plan (RMP), which includes the TP project area, beginning in 2006. The Burns Paiute Tribe indicated at the time that it “would defer consultation to the tribes that had reservations closer to the study area” and that “it would not be necessary to keep the tribe on the mailing list” for the RMP. The RMP identified massacre sites in the study area, but there was no mention of TP.

·       The SHPO reviewed and signed off on the list of tribes to be consulted by the BLM.

I am biased, but given the history of tribal consultation in the area over a long period of time, I agree with the BLM that it was completely reasonable to consult only with the tribes located near to TP. I see no evidence of bad faith here.

To be balanced, I was hoping to see evidence of the BLM reaching out to the tribes other than through formal correspondence. That didn’t appear to happen, but I don’t think it is fatal to their defence.

Interestingly that according to Maxine Redstar, Chair of Fort McDermitt Tribe (refer Exhibit 17), the “massacre” may have been tribal and resulted in two deaths. From a spiritual perspective it shouldn’t matter who the perpetrators were, but many (like me) may have assumed the alleged “massacre” was committed by soldiers or settlors, which has not been alleged by anyone, and appears not to be the case.

Finally, each of the tribes that now claim to have an interest in the site have been invited to consult on the issuing of the permit to undertake the HPTP survey work.

Given all of the above, together with other arguments made by the BLM, I can’t see Judge Du granting the “extraordinary remedy” of a PI in this case. And ultimately, I don’t think the Plaintiffs have demonstrated the BLM failed to act “reasonably and in good faith”.

Always interested to read what others think.