Thacker Pass activists ‘SLAPPed’ with $50K fine for providing bathrooms to Native Elders

OROVADA, Nev. — The Bureau of Land Management (BLM) is threatening organizers of the Protect Thacker Pass land defense camp with $49,890.13 in fines for alleged violations of public land regulations in what activists say is blatant harassment, an attempt to cover up BLM’s violations of the law, and a violation of Native American religious rights.

Will Falk and Max Wilbert, who launched a protest camp Jan. 15 against the proposed Lithium Nevada Corporation Thacker Pass lithium mine, are facing allegations of trespass related to the construction of temporary latrines and a plywood windbreak.

Falk, who is an attorney representing the Reno-Sparks Indian Colony and a native organization called Atsa koodakuh wyh Nuwu (People of Red Mountain) in a court case against the BLM, says the trespass allegations appear to be retaliation for his involvement in the lawsuit.

“BLM Winnemucca’s response to being accused of failing to adequately consult with Native American Tribes is to fine the attorney bringing those accusations nearly $50,000,” Falk says, noting that the trespass notice was first delivered on August 5, eight days after U.S. District Court, District of Nevada Chief Judge Miranda Du granted intervention to his clients, the Reno-Sparks Indian Colony and Atsa Koodakuh wyh Nuwu/People of Red Mountain.

On July 19, Falk and his co-counsel filed a motion to intervene in a lawsuit against the BLM claiming they violated the National Historic Preservation Act by failing to properly consult with Tribes. 

The fine may also violate the religious rights of Native Americans. All three structures BLM referenced in their August 5 letter were removed in what Falk and Wilbert say was a “demonstration of good faith.” But other latrines remained in place. Falk and Wilbert say that’s because Native American elders, including disabled elders, who are regularly visiting Thacker Pass to participate in ceremonies, made repeated requests for bathroom facilities.

Sunday was the 156-year anniversary of a September 12, 1865 massacre committed by the U.S. Calvary, in which at least 31 Paiutes were killed. More than 100 mostly indigenous people, including an elder in a wheelchair who recently underwent an amputation, gathered at Thacker Pass to pray and mark the event with ceremony.

Falk and Wilbert say that they have explained to BLM officials repeatedly that the latrines are for elders participating in ceremony, and asked for permits. Most recently, on July 24, BLM Law Enforcement Ranger Blane Parnell informed Wilbert that a permit would be required for temporary outhouses. Wilbert responded both verbally, and in writing, requesting a permit application. Then, again, on August 20, Falk wrote to Kathleen Rehberg, Field Manager for the BLM Humboldt River Field Office, asking for guidance in obtaining a special use permit or to work out some other acceptable arrangement so that people visiting Thacker Pass for ceremony could use the bathroom. All of these requests were completely ignored.

“The Bureau of Land Management is ignoring our permit requests and fining us for maintaining sanitation and protection religious freedom,” Wilbert says. “The same office fast-tracked the permit for Lithium Nevada to destroy thousands of acres of wildlife habitat, and sacred native sites. It’s completely absurd for them to claim they are ‘protecting public lands’ with this action.”

It’s not new for governments and corporations to intimidate activists using legal or administrative mechanisms to prevent civic engagement. One example is what is known as a “SLAPP” suit, or a “Strategic Lawsuit Against Public Participation,” in which a lawsuit is filed to censor, intimidate, and silence critics. While many of these cases are weak, they burden defendants with the cost and energy of mounting a legal defense in an attempt to force them to abandon their criticism or opposition.

Attorney Terry Lodge, who is working with Falk to represent Reno-Sparks Indian Colony and People of Red Mountain, says these threats from the BLM have all the hallmarks of a SLAPP suit.

“BLM isn’t at all subtle,” Lodge says. “They’re burdening a citizen intervention operating on a shoestring budget with the prospects of having to ward off a diversionary attack. This gambit comes just weeks before the most labor-intensive part of this lawsuit begins, where our clients will have to assemble the evidence of BLM’s assault on the public’s right to know about and oppose the Lithium Americas permit.” 

Falk and Wilbert won’t be intimidated by BLM’s abuse of power, according to Lodge.

“If the agency insists on going forward to prosecute Falk and Wilbert for civil damages, they’ll find themselves having to answer in federal court for suspected retaliation. BLM administrators will have to explain, under oath, how this oddly-timed event over a latrine permit isn’t petty payback for public opposition to a 17,933-acre mine.”  

BLM Nevada has a history of prioritizing mining over the public interest, and multiple instances of retaliation against whistleblowers. 

In October 2019, for example, BLM Nevada Environmental Protection Specialist Dan Patterson filed a whistleblower complaint alleging “open pits of toxic wastewater, roads bulldozed through protected wildlife habitat, and secret hunting cabins are all being allowed on public lands in Nevada” in violation of federal law. 

Patterson was fired soon after in what he describes as retaliation. “[BLM Nevada management is not interested in] a multiple-use agenda, which includes conservation, includes wildlife, includes working with tribes, includes working with people concerned about the environment,” he told KNPR.

Lithium Nevada, the U.S. subsidiary of Lithium Americas, originally planned to begin constructing the Thacker Pass mine in early 2021 through a contractor with the North American Coal Corporation, but delays in permitting, determined opposition, and concerns from locals have already put the project a year behind schedule.

What began as a two-person occupation in January has since expanded, with hundreds attending events at Thacker Pass over the past 9 months. Resistance to the proposed mine has also included multiple lawsuits, water rights challenges, and public protests in Reno, Winnemucca, and Carson City. 

Native governments and organizations continue to speak out. Besides the Reno-Sparks Indian Colony and People of Red Mountain, the Burns-Paiute Tribe has also intervened in the lawsuit. And on June 24th, the National Congress of American Indians (NCAI), the oldest and largest national organization of American Indian and Alaska Native tribal governments, passed a resolution stating opposition to the Thacker Pass lithium mine and calling on the Department of the Interior to rescind the permits.

The Thacker Pass mine was “fast-tracked” under the Trump administration, which means that a public engagement and permitting process that normally takes 3-4 years was completed in less than 12 months.

Supporters of the campaign can donate here: https://givebutter.com/protectthackerpass

Timeline

• January 15, 2021 — Due to regulations cuts and “fast-tracked” permitting under the Trump Administration, the Bureau of Land Management releases a Record of Decision approving the Thacker Pass mine less than a year after beginning the Environmental Impact Statement process required under the National Environmental Policy Act. On the same day, the Protect Thacker Pass camp is established.
• February 11, 2021 — Local rancher Edward Bartell files a lawsuit (Case No. 3:21-cv-00080-MMD-CLB) in U.S. District Court alleging the proposed mine violates the Endangered Species Act by harming Lahontan Cutthroat Trout, and would cause irreparable harm to springs, wet meadows, and water tables.
• February 26, 2021 — Four environmental organizations (Basin and Range Watch, Great Basin Resource Watch, Wildlands Defense, and Western Watersheds Project) file another lawsuit (Case No. 3:21-cv-00103-MMD-CLB) in U.S. District Court, alleging that BLM violated the National Environmental Policy Act, Federal Land Policy Management Act, and other laws in permitting the Thacker Pass mine.
• May 20, 2021 — Atsa koodakuh wyh Nuwu releases public statement of opposition to the Thacker Pass mine & starts a petition which has gathered nearly 3,000 signatures.
• May 27, 2021 — The four environmental groups who filed suit on Feb. 26 ask Federal Judges for a Preliminary Injunction to block Lithium Nevada’s proposed archeological digging under their “Historic Properties Treatment Plan.”
• June 12, 2021 — A rally opposing the Thacker Pass mine is held in Reno, Nevada, with several hundred people attending. Speakers include members of the Pyramid Lake Paiute Tribe, Fort McDermitt Paiute-Shoshone tribe, Duck Valley 
• June 24, 2021 — The National Congress of American Indians (NCAI), the oldest and largest national organization of American Indian and Alaska Native tribal governments, called on the Department of the Interior to rescind the permits for the Thacker Pass project.
• July 7, 2021 — A rally is held at the Carson City office of Far Western Anthropological Research Group, Inc., the for-profit archeological company hired to excavate the cultural sites at Thacker Pass. Atsa koodakuh wyh Nuwu (People of Red Mountain) deliver a signed letter stating that if Far Western digs up sacred and cultural sites at Thacker Pass, they will be committing actions that are unethical and wrong.
• July 19, 2021 — The Reno-Sparks Indian Colony and Atsa koodakuh wyh Nuwu (People of Red Mountain) file a motion to intervene in Federal District Court alleging that the Bureau of Land Management (BLM) violated the National Historic Preservation Act (NHPA) in permitting the planned lithium mine.
• July 27, 2021 — Reno-Sparks Indian Colony and Atsa koodakuh wyh Nuwu (People of Red Mountain), represented by attorneys Julie Cavanaugh-Bill, Will Falk, and Terry Lodge, file a second motion asking Federal Judges for a Preliminary Injunction to block Lithium Nevada’s proposed Historic Properties Treatment Plan.
• August 5, 2021 — Bureau of Land Management delivers notice alleging that Falk and Wilbert are liable for trespass.
• September 3, 2021 — Judge Miranda Du rejects the injunction request, writing that while she “finds the Tribes’ arguments regarding the spiritual distress that the [looting of native artifacts and sacred sites] will cause persuasive,” she “must nonetheless reluctantly” allow the archeological dig as “the Court must operate within the framework of the applicable laws and regulations.”
• September 15, 2021 — Bureau of Land Management delivers notice that Falk and Wilbert (neither of whom were on-site) are guilty of trespass.