Courts Urged to Block ‘Illegally Approved’ Lithium Mine

Courts Urged to Block ‘Illegally Approved’ Lithium Mine

by | Feb 25, 2023 | ANALYSIS, Biodiversity & Habitat Destruction, Colonialism & Conquest, Indigenous Autonomy, Mining & Drilling

Editor’s note: The Thacker Pass lithium mine project reflects more than one injustices in the world: greenwashing mines, denying U.S. atrocities against indigenous tribes, grabbing indigenous land against their will, ecocide. This article highlights some of these injustices.

By Brett Wilkins / Common Dreams

A coalition of conservation groups on Tuesday joined Native American tribes in launching legal challenges to a proposed lithium mine in northern Nevada that critics say was “illegally approved” and will “irreparably damage” the delicate desert ecosystem and land where Indigenous peoples are seeking federal historical recognition of a genocidal massacre perpetrated by U.S. colonizers.

Members of the Western Watersheds Project filed an emergency motion in federal court Tuesday seeking an injunction against the Thacker Pass Lithium Mine in Humboldt County pending action by the 9th U.S. Circuit Court of Appeals to ensure the project—which would tap into the largest known source of lithium in the United States and was approved during the final days of the Trump administration—complies with federal law.

“This mine should not be allowed to destroy public land unless and until the 9th Circuit has determined whether it was legally approved,” Western Watersheds Project staff attorney Talasi Brooks said in a statement announcing the filing.

“There’s no evidence that Lithium Nevada will be able to establish valid mining claims to lands it plans to bury in waste rock and tailings, but the damage will be done regardless,” Brooks added, referring to the subsidiary of Canada-based Lithium Americas that is seeking to build the mine. Lithium is a key component of electric vehicle batteries, cellphones, and laptops.

The emergency motion follows a lawsuit filed last week by the Reno-Sparks Indian Colony, Burns Paiute Tribe, and Summit Lake Paiute Tribe in response to U.S. District Judge Miranda Du’s earlier ruling that largely favored Lithium Americas and rejected opponents’ claims that the project would cause “unnecessary and undue degradation” to the environment and wildlife.

“When the decision was made public on the previous lawsuit last week, we said we would continue to advocate for our sacred site PeeHee Mu’Huh. A place where prior to colonization, all our Paiute and Shoshone ancestors lived for countless generations,” Arlan Melendez, chairman of the Reno-Sparks Indian Colony, said in a statement.

“It’s a place where all Paiute and Shoshone people continue to pray, gather medicines and food, honor our nonhuman relatives, honor our water, honor our way of life, honor our ancestors,” Melendez added.

All three tribes call Thacker Pass PeeHee Mu’Huh, which means “rotten moon”—a name given to honor the dozens and perhaps scores of Northern Paiute men, women, and children who were massacred by Nevada Cavalry on September 12, 1865.

According to an account by one participant:

Daylight was just breaking when we came in sight of the Indian camp. All were asleep. We unslung our carbines, loosened our six-shooters, and started into that camp of savages at a gallop, shooting through their wickiups as we came. In a second, sleepy-eyed squaws and bucks and little children were darting about, dazed with the sudden onslaught, but they were shot before they came to their waking senses…

We dismounted to make a closer examination. In one wickiup we found two little papooses still alive. One soldier said, “Make a cleanup. Nits make lice.”

The three tribes assert that all of Thacker Pass should be listed on the National Register of Historic Places.

“While Americans tend to focus on only the proud moments of American history, the shameful history of genocide perpetrated by the American government against Native Americas is nevertheless a broad pattern running throughout American history,” Michon Eben, the Reno-Sparks Indian Colony’s cultural resource manager, wrote in a 2022 letter to the U.S. Bureau of Land Management (BLM).

Eben added that the tribe “considers the destruction of its traditional cultural properties for another mine another act of genocide in the broad pattern running throughout American history.”

Indigenous advocates argue that victims of the 1865 massacre were never properly buried, that human remains and artifacts are still being discovered in Thacker Pass, and that federal authorities failed to properly consult tribes on the mine project in violation of the National Historic Preservation Act.

“Part of the federal government’s responsibility is to determine if a proposed mining project may adversely affect historic properties. Historic properties include Native American massacre sites,” Eben told Nevada Current. “The BLM failed in its trust responsibility to tribes and now our ancestors’ final resting place is currently being destroyed at PeeHee Mu’huh.”

“The BLM failed in its trust responsibility to tribes and now our ancestors’ final resting place is currently being destroyed.”

Will Falk, attorney for the Reno-Sparks Indian Colony and co-founder of Protect Thacker Pass—which set up a protest camp on the site of the proposed mine—accused BLM officials of lying about the massacre site being located outside the project area.

“The Biden administration and [Interior] Secretary Deb Haaland keep paying lip service to tribal rights and respect for Native Americans,” Falk told Last Real Indians last year. “Well, now three federally recognized tribes are saying that BLM Winnemucca did not respect tribal rights. It’s time that BLM halts this project so the tribes can be heard.”

Tim Crowley, vice president of government affairs and community relations for Lithium Nevada, argued in a statement that “since we began this project more than a decade ago, we have been committed to doing things right,” and that Du’s ruling “definitively supported the BLM’s consultation process, and we are confident the ruling will be upheld.”

While global demand for lithium is surging, extraction of the metal can have devastating consequences, including destruction of lands and ecosystems and water contamination.

“Global warming is a serious problem and we cannot continue burning fossil fuels, but destroying mountains for lithium is just as bad as destroying mountains for coal,” contends Max Wilbert of Protect Thacker Pass. “You can’t blow up a mountain and call it green.”

Please donate to support the case and fund legal costs!

DONATE: https://www.protectthackerpass.org/donations-and-funding/

New Lawsuit Challenging Thacker Pass Mine [Press Release]

New Lawsuit Challenging Thacker Pass Mine [Press Release]

by | Feb 24, 2023 | ACTION, Mining & Drilling

February 17, 2023

Late yesterday, three Native American Tribes — the Reno-Sparks Indian Colony, Burns Paiute Tribe, and Summit Lake Paiute Tribe — launched a major new lawsuit against the Thacker Pass lithium mine.

Will Falk is representing RSIC and SLPT in this lawsuit, and Protect Thacker Pass is providing media support. Please donate to support the case and fund legal costs!

DONATE: https://www.protectthackerpass.org/donations-and-funding/

This new case contains major allegations that were not heard in the prior court case, and may be a significant road block for the mine.

FOR IMMEDIATE RELEASE

“This Fight Isn’t Over” – Three Tribes File New Lawsuit Challenging Thacker Pass Lithium Mine

February 17, 2023

RENO, NV — Three Native American tribes have filed a new lawsuit against the Federal Government over Lithium Nevada Corporation’s planned Thacker Pass lithium mine, the latest move in what has become a two-year struggle over mining, greenwashing, and sacred land in northern Nevada.

The lawsuit, filed by the Reno-Sparks Indian Colony, Burns Paiute Tribe, and Summit Lake Paiute Tribe on in Federal District Court on Thursday evening, includes three major allegations.

First, the tribes claim that the Bureau of Land Management (BLM) withheld crucial information from the Nevada State Historic Preservation Office and lied about the extent of tribal consultation in order to secure legally-required concurrence about historic properties in Thacker Pass.

Second, the tribes allege that Lithium Nevada, with BLM’s complicity, lied about terminating a set of older permits for mining-related activities in Thacker Pass. Further, the tribes say that the BLM has, without notifying tribes or the public, expanded the scope of previous permit authorizations dozens of times, allowing Lithium Nevada to conduct preliminary mine construction activities that are harming traditional cultural properties in Thacker Pass.

Third, the lawsuit argues that the BLM lied about consulting with Tribes before issuing their Record of Decision, and that the agency has continually refused to acknowledge both oral and written histories presented by the Tribes about the sacredness and cultural significance of Thacker Pass.

In total, the lawsuit asserts that the BLM has violated the Federal Land Policy Management Act, the National Historic Preservation Act, and the National Environmental Policy Act, and is also guilty of Breach of Contract.

This lawsuit comes just one week after Judge Miranda Du ruled largely in favor of Lithium Nevada and the BLM in a prior consolidated case involving claims brought in 2021 by environmental groups, a local rancher, and two Native American tribes (the Reno-Sparks Indian Colony and the Burns Paiute Tribe).

However, that case only considered events and information prior to January 15, 2021, when the BLM issued the Record of Decision (ROD) — the main Federal permit — for the Thacker Pass lithium mine project. Tribal claims were curtailed by this limitation, which blocked key evidence from being heard — evidence that is integral to the new case.

The new lawsuit is also strengthened by the addition of the Summit Lake Paiute Tribe, one of the Tribes that the BLM claims to have consulted with prior to issuing the ROD. Summit Lake and both other tribes the BLM claims to have consulted (the Winnemucca Indian Colony and Fort McDermitt Paiute-Shoshone Tribe) have disputed BLM’s assertion that any consultation took place. (The Winnemucca Indian Colony filed to intervene in the previous court case, but was blocked from taking part by Judge Du, for seeking intervention too late in the case.)

All three litigating tribes hold Thacker Pass, known as “Peehee Mu’huh” in the Paiute language, as a sacred and culturally important site which has been used for gathering edible and medicinal plants, hunting and fishing, conducting ceremonies, camping, and everyday lifeways of Paiute and Shoshone peoples. Many oral histories, passed down for generations among regional Native American communities, tell of the significance of this area.

Thacker Pass is also the site where two massacres of Paiute people took place – one which occurred prior to colonization as part of an inter-tribal raid, and a second which took place on September 12, 1865, when Federal troops massacred between 31 and 50 Paiute men, women, and children in a surprise attack at dawn.

Much of this history has been assembled for the first time in a comprehensive ethnological report commissioned by the Reno Sparks Indian Colony and Summit Lake Paiute Tribe, which is titled “Thacker Pass/Peehee mu’huh: A Living Monument to Numu History and Culture.” The tribes submitted that report to the Department of the Interior on February 3rd as part of an application to list both the 1865 massacre site and the whole of Thacker Pass, which tribes are calling the “Thacker Pass Traditional Cultural District,” under the National Register of Historic Places. (Numu is what the Northern Paiute call themselves.)

Arlan Melendez , Chairman of the Reno-Sparks Indian Colony:
“When the decision was made public on the previous lawsuit last week, we said we would continue to advocate for our sacred site PeeHee Mu’Huh. A place where prior to colonization, all our Paiute Shoshone ancestors lived for countless generations. And is the very same place they were massacred (never laid to rest properly) by the U.S. Calvary. It’s a place where all Paiute Shoshone people continue to pray, gather medicines & food, honor our non-human relatives, honor our water, honor our way of life, honor our ancestors.
Our contention is with the largest lithium mine in country and the expansion of the 40 plus other lithium claims proposed for the State of Nevada. They should have notified all Tribes sooner. The Thacker Pass permitting process was not done correctly. BLM contends they have discretion to decide who to notify or consult with. They only contacted 3 out of the 22 tribes who had significant ties to Thacker Pass.
One of the Biden Administration’s first actions when they took office was to prioritize ‘regular, meaningful, and robust consultation’ with Tribes. That did not happen with Thacker Pass, and we need the Federal Government to make that right. Our history, our culture, our people, and our sacred sites must be protected.”

Diane Teeman, Director, Culture & Heritage Department, Chairperson, Tribal Council, Burns Paiute Tribe:
“Thacker Pass is known as a spiritually powerful place because of the presence of the remains of tribal Ancestors and their spirits. Our Paiute oral history tells us that we Paiutes have lived in this area since before the Cascade Mountains were formed. Our people follow our unwritten traditional tribal laws and philosophy of life which require we respect all other living things including plants, animals, minerals, and so on. Our traditional ways require we live in reciprocity with all other things and never put ourselves as feeble humans above others. For this reason, our unwritten traditional tribal law requires we do everything in our power to protect it. Only the Tribe and its members can speak to the significance of an area to the Tribe.”

Will Falk, attorney representing the RSIC and SLPT:
“BLM fast-tracked its review of the Thacker Pass Lithium Mine Project and was moving so fast, it made a number of mistakes including failing to identify the September 12, 1865 massacre site, even though BLM possessed descriptions of this massacre in its own General Land Office records. The Tribes have notified BLM of the cultural, spiritual, and historical significance of Thacker Pass, but BLM continues to refuse to acknowledge this information. BLM’s failure to acknowledge the information the Tribes have provided about the significance of Thacker Pass was not reviewed by the court in the previous lawsuit. BLM has committed a number of violations of federal law since the original lawsuit was filed in 2021. My clients and I look forward to exposing the tricks BLM has played on the Tribes for the Thacker Pass Project.”

Michon Eben, Tribal Historic Preservation Officer at the Reno-Sparks Indian Colony:
“Part of the Federal Government’s responsibility is to determine if a proposed mining project may adversely affect historic properties. Historic properties include Native American massacre sites. The BLM failed in its trust responsibility to tribes and now our ancestor’s final resting place is currently being destroyed at Peehee Mu’huh. Why is it that when our ancestors’ burials are under threat, its business as usual? We are demanding mutual respect for our dead relatives and their final resting place. The BLM and non-native archeologists do not have the expertise to determine whether a property is of religious or cultural importance to a tribe. Native American tribes are the special experts of our culture and Peehee Mu’huh/Thacker Pass is significant to regional tribes and to American History.”

Shelley Harjo, Fort McDermitt Tribal Member:
“Are we willing to sacrifice sacred sites, health and internal balance for short term economic gains while giant corporations create unmeasurable wealth, deplete resources, and leave our future generations to endure the disorder the Thacker Pass mine would leave behind? I will never believe this is the best method for greener living and nor do many other native people in our area. My elders who have been going up to fish and gather medicine in the Thacker Pass have been followed and harassed by Lithium Nevada’s private security, and now say they don’t feel safe on their own ancestral homeland. This is an unacceptable bullying tactic against elderly women by a foreign mining company that has no business here.”

Max Wilbert, Protect Thacker Pass:
“Global warming is a serious problem and we cannot continue burning fossil fuels, but destroying mountains for lithium is just as bad as destroying mountains for coal. You can’t blow up a mountain and call it green.”

The Thacker Pass lithium mine project has become emblematic of what critics say is a rushed transition to “green energy” that is replicating many of the problems of the fossil fuel industry, resulting in major environmental damage, and harming communities on the frontlines. Opponents of the Thacker Pass say they aren’t arguing in favor of fossil fuels, but in favor of protecting the Earth. Lithium Nevada claims that its lithium mine will be essential to producing batteries for combating global warming, and the Biden administration has previously indicated some support for Thacker Pass. Opponents of the project have called this “greenwashing,” arguing that the project would harm important wildlife habitat and create significant pollution, including greenhouse gas emissions. They say that electric cars are harmful to the planet and a different approach is needed to address the climate crisis.

General Motors recently entered into an offtake agreement with Lithium Americas, the parent company of Lithium Nevada, to purchase a $650 million stake and to buy the lithium that is produced at Thacker Pass. News reports have stated that the agreement is contingent on the results of the previous lawsuit. It is unclear at this time how the new lawsuit will affect GM’s commitment to Thacker Pass.

###

Campaign Timeline

New Lawsuit
Thacker Pass Sacred Sites Are Already Being Damaged

Thacker Pass Sacred Sites Are Already Being Damaged

by | Jan 2, 2023 | ACTION, Indigenous Autonomy, Mining & Drilling

Tribal Chairman: “It’s Our Responsibility to Protect Sacred Sites”

RENO, NV — The Thacker Pass Lithium Mine in northern Nevada is headed back to Federal Court on January 5th as the lawsuits against the project near completion, but project opponents are raising the alarm that Lithium Nevada Corporation has already begun work on the proposed mine.

Lithium Nevada’s workers at Thacker Pass have begun digging test pits, bore holes, dumping gravel, building fencing, and installing security cameras where Native Americans often conduct ceremonies. Lithium Nevada also conducted “bulk sampling” earlier this year, and may be planning to dig dozens of new test pits across Thacker Pass. They’re claiming this work is legal under previous permits issued over a decade ago. But Tribes and mine opponents, including the Reno-Sparks Indian Colony and Summit Lake Paiute Tribe, disagree.

They point to language in the Final Environmental Impact Statement for the Thacker Pass Lithium Mine that says “authorization of [the mine] will terminate the [earlier permits].” The Federal permit for Thacker Pass was approved on January 15th, 2021.

Will Falk, attorney for the Reno-Sparks Indian Colony, explains: “Lithium Nevada told the government and the American public that it would terminate the older permits upon BLM’s approval of the Thacker Pass Project. Now they are going back on their word, it appears they are lying to get a headstart on building the Thacker Pass mine, and the BLM is allowing them to get away with it.”

Thacker Pass, known as Peehee Mu’huh in Paiute, is a sacred site to regional tribes whose ancestors lived in the area for thousands of years, and were massacred there on at least two occasions.

Michon Eben, Tribal Historic Preservation Officer at Reno-Sparks Indian Colony, says the site is incredibly important to Native American history. “Peehee Mu’huh is a sacred place where our ancestors lived and died. We still go there to pray, gather food and medicine, hunt, and teach our youth about the history of our people.” Eben and the Reno-Sparks Indian Colony are currently hosting an exhibit on the impacts of mining on Native people of Nevada.

Tribal members have stated in court filings that, because of the history of battles and massacres on the site, Thacker Pass is as significant to their culture as a site like Pearl Harbor is to American history. Arlan Melendez, Chairman of the Reno-Sparks Indian Colony, understands the importance of battle and massacre sites as both a Native American and as a U.S. Marine Corps veteran.

“As tribal leaders, it’s our responsibility to protect and honor our sacred places,” says Melendez. “Throughout US history, tribes have always been set up to lose in the US legal system against BLM. This Lithium Mine stands in the way of our roots and it’s violating the religious freedoms of our elders, our people.”

Falk, the Tribal attorney, says that Lithium Nevada’s construction activities at Thacker Pass are also violating tribal consultation rights.

“The Reno-Sparks Indian Colony and Summit Lake Paiute Tribe are still engaged in consultation with the BLM about the September 12, 1865 massacre site, a site that will be completely destroyed by Lithium Nevada’s mine if this project is built,” Falk says. “It’s hard to believe a government agency is consulting in good faith when they are already allowing the site to be harmed.”

Shelley Harjo, a tribal member from the Fort McDermitt Shoshone Paiute Tribe and an employee of the Reno-Sparks Indian Colony, has called the planned destruction of Thacker Pass “the biggest desecration and rape of a known Native American massacre site in our area.”

The upcoming January 5th hearing in Reno’s Federal Courthouse will be the final oral argument in the ongoing lawsuits against the Thacker Pass mine. Mine opponents are planning a march and rally outside. Plaintiffs, including the Reno-Sparks Indian Colony, Burns Paiute Tribe, four environmental organizations, and local rancher Edward Bartell, have alleged numerous violations of the law, and Judge Miranda Du is expected to issue her opinion in the case within days or weeks of the January 5th hearing.

“No matter what happens in court on January 5th, Thacker Pass is being destroyed right now and that threat will be ongoing,” says Max Wilbert, co-founder of Protect Thacker Pass. “We have to stop that.”

Lithium Nevada claims that its lithium mine will be essential to producing batteries for combating global warming, and the Biden administration has previously indicated some support for Thacker Pass. Opponents of the project have called this “greenwashing,” arguing that the project would harm important wildlife habitat and create significant pollution. They say that electric cars are still harmful to the planet.

Timeline

January 15, 2021 — Due to “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. On the same day, Max Wilbert and Will Falk established the Protect Thacker Pass camp.

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.

June 24, 2021 — The National Congress of American Indians (NCAI), the oldest and largest national organization of American Indian and Alaska Native tribal governments, calls on the Department of the Interior to rescind the permits for the Thacker Pass project.

Spring and Summer 2021 — Rallies, protests, and prayer runs take place in Orovada, Winnemucca, Reno, Carson City, and at Thacker Pass. More than 100 mine opponents gather at Thacker Pass to commemorate the 156-year anniversary of a September 12, 1865 massacre of at least 31 Northern Paiute men, women, and children committed by the 1st Nevada Cavalry. Thousands of people visit the site.

July 19, 2021 — The Reno-Sparks Indian Colony and Atsa koodakuh wyh Nuwu (People of Red Mountain) files a successful motion to intervene in Federal District Court (Case No. 3:21-cv-00080-MMD-CLB) alleging that the Bureau of Land Management (BLM) violated the National Historic Preservation Act (NHPA) in permitting the planned lithium mine.

August 2, 2021 — Burns Paiute Tribe files a motion to intervene on the side of tribal plaintiffs (Case No. 3:21-cv-00080-MMD-CLB).

September 15, 2021 — Bureau of Land Management accuses Will Falk and Max Wilbert of trespass for providing bathrooms to native elders at Thacker Pass, fining them $49,890.13.

October 8, 2021 — Eighteen native elders from three regional tribes request a BLM permit for their ceremonial camp. The BLM does not respond.

November 29, 2021 — The Reno-Sparks Indian Colony files an amended complaint in federal court alleging major previously unknown violations of the law. In January, Judge Miranda Du rejects the amended complaint because she wants to make a final decision on the case within a few months (note that the case has now continued for another calendar year).

February 11th, 2022 — Winnemucca Indian Colony files a motion to intervene in the lawsuit on the side of plaintiffs, claiming that BLM’s contention that they consulted with the Tribe is completely false. Judge Du rejects this motion shortly afterwards with the same reasoning used above.

April 4th, 2022 — Reno-Sparks Indian Colony files a Motion for Discovery Sanctions alleging that the BLM has been disobeying court orders and making “reckless, false statements” in a deliberate attempt to abuse the justice system and limit judicial oversight. Judge Du agrees with RSIC, but rejects the motion on a technicality.

August 2022 — BLM “discovers” five new historic sites at Thacker Pass and for the first time acknowledges the September 12, 1865 massacre took place, but continues to reject tribal expertise.

September 2022 — Lithium Nevada Corporation begins digging up portions of Thacker Pass for “bulk sampling” despite consultation still being ongoing between the Bureau of Land Management and regional tribes over cultural sites.

October 2022 — Dozens of mining activists from four continents visit Thacker Pass as part of the Western Mining Action Network biennial conference.

Contact:
Will Falk, Attorney for the Reno-Sparks Indian Colony and Summit Lake Paiute Tribe
Bethany Sam, Reno-Sparks Indian Colony Media Relations
Max Wilbert, Protect Thacker Pass

First Voices Radio: “Protect Thacker Pass” with Author, Attorney, and Activist Will Falk

First Voices Radio: “Protect Thacker Pass” with Author, Attorney, and Activist Will Falk

by | Aug 8, 2022 | ACTION, Obstruction & Occupation

Editor’s note: Today’s post is an interview with Will Falk discussing his work on the Protect Thacker Pass campaign with Tiokasin Ghosthorse (Lakota), host of First Voices Radio. Falk co-founded Protect Thacker Pass with Max Wilbert and is representing the Reno-Sparks Indian Colony in a Federal court case alleging violations of tribal consultation laws.

By First Voices Radio

Tiokasin’s guest is Will Falk, who gives an update on Thacker Pass in northern Nevada. In January 2021, Will and Max Wilbert launched an occupation of a proposed lithium mine at Thacker Pass. Will is a writer, lawyer, and environmental activist. He believes the ongoing destruction of the natural world is the most pressing issue confronting us today.

Activism has taken Will to the Unist’ot’en Camp — an Indigenous cultural center and pipeline blockade on unceded Wet’suwet’en territory in so-called British Columbia, Canada, to a construction blockade on Mauna Kea in Hawai’i, and to endangered pinyon-juniper forests in the Great Basin.

Will’s first book, “How Dams Fall: Stories the Colorado River Told Me” was published in August, 2019 by Homebound Publications.

For more information, visit https://www.protectthackerpass.org/. Look for Will’s poetry on his Facebook page at https://www.facebook.com/willfalk35. For more information about Will, visit https://willfalk.org/

With Guest Will Falk

CLICK HERE TO LISTEN NOW

Production Credits: Tiokasin Ghosthorse (Lakota), Host and Executive Producer; Liz Hill (Red Lake Ojibwe), Producer; Malcolm Burn, Studio Engineer, Radio Kingston, WKNY 1490 AM and 107.9 FM, Kingston, NY; Tiokasin Ghosthorse, Audio Editor

Music Selections:

1. Song Title: Tahi Roots Mix (First Voices Radio Theme Song); Artist: Moana and the Moa Hunters; Album: Tahi (1993); Label: Southside Records (Australia and New Zealand) (00:00:22)

2. Song Title: Mother Earth; Artist: Karliene; Single: Mother Earth (2019); Label: N/A (Available on YouTube) (00:24:40)

3. Song Title: Single Pride of Man; Artist: Quicksilver Messenger Service; Album: Quicksilver Messenger Service (1968); Label: Capitol Records (00:28:45)

4. Song Title: Revolution; Artist: SOJA; Album: Peace in Time of War (2002); Label: DMV Records (00:32:34)

5. Song Title: Bo Bo’s Groove; Artist: Tom Principato Band; Album: Raising the Roof (2008); Label: Powerhouse Records (00:37:30)

6. Song Title: Mother Earth; Artist: SOJA; Album: Peace in Time of War (2002); Label: DMV Records (00:37:30)

7. Song Title: Through the Eyes of Love; Artist: Walter Trout and the Radicals; Album: Notodden Blues Festival – The Best of People and Blues – Nbf, Vol. 3 (2004); Label: Bluestown Records (00:46:45)

8. Song Title: American Dream; Artist: J.S. Ondara; Album: Tales of America (The Second Coming) (2019); Label: Verve Forecast / Universal Music Canada (00:55:00)

AKANTU INSTITUTE: Visit Akantu Institute, an institute that Tiokasin founded with a mission of contextualizing original wisdom for troubled times. Go to https://akantuinstitute.org/ to find out more and consider joining his Patreon page at https://www.patreon.com/Ghosthorse.

Photo by Max Wilbert: Will Falk surveys native Pinyon-Juniper forests and BLM clearcuts near Ely, Nevada. To learn more, see https://pinyonjuniperforests.org.

Legal update and hearing this week / Press Conference on Thacker Pass Lawsuits [Dispatches from Thacker Pass]

Legal update and hearing this week / Press Conference on Thacker Pass Lawsuits [Dispatches from Thacker Pass]

by | Aug 27, 2021 | Biodiversity & Habitat Destruction, Climate Change, Colonialism & Conquest, Indigenous Autonomy, Listening to the Land, Mining & Drilling, Movement Building & Support, Obstruction & Occupation, Repression at Home, Toxification

On Friday, August 27th at 2pm Pacific, attorneys for Reno-Sparks Indian Colony and Atsa Koodakuh wyh Nuwu (People of Red Mountain) will hold a virtual press conference updating supporters and media members on the lawsuits against the Bureau of Land Management and Lithium Nevada Corporation.

Earlier that morning, there will be a hearing in Federal District Court. Judge Miranda Du will hear arguments from Reno-Sparks Indian Colony and Atsa Koodakuh wyh Nuwu (People of Red Mountain) on their motion for a preliminary injunction. If Judge Du grants the injunction, she is recognizing that these plaintiffs have a good chance of succeeding in their lawsuit which argues that the Bureau of Land Management violated federal law when they permitted the Thacker Pass lithium mine by not properly consulting with tribes. The full lawsuit will be heard later in 2021 or early 2022.

Friday’s hearing will be open to the public via video conference, but not in-person. We encourage anyone who is interested to attend. **But legal hearings can be hard to understand if you are not a lawyer, which is why we are planning to hold this virtual press conference that afternoon to explain what is happening in the case.**

Questions will be accepted and members of the press are invited to join.

The press conference will be live streaming on the Protect Thacker Pass Facebook page.

Legal update and hearing this week

Media coverage regarding the July 21st Thacker Pass mine-related injunction hearing seems to misunderstand the current status and implications of the ongoing legal battles over Thacker Pass, or “Peehee Mu’huh.”

Contrary to these media misrepresentations, Thacker Pass’ fate has not yet been decided – far from it. Lithium Nevada still has formidable legal obstacles to overcome – including the recent addition of Paiute-Shoshone plaintiffs bearing new, stronger arguments against the excavation of cultural sites at Thacker Pass.

It’s true that on July 23rd, Nevada Federal District Court Judge Miranda Du refused to grant an injunction that would have prohibited, on environmental grounds, the archaeological excavation of cultural sites at Thacker Pass. The judge rejected claims that the preliminary archaeological digging (of numerous hand-dug holes and seven 40-meter trenches) would cause irreparable environmental harm to the area.

However, some of the recent media coverage fails to clarify two crucial points. First, the July 23rd decision pertains only to the request for a preliminary injunction, rather than to the underlying legal case itself. Second, and even more importantly, on July 19th new plaintiffs moved to intervene in the legal case.

What is a Preliminary Injunction?

A preliminary injunction is a court order that preserves the status quo between relevant parties while the judge makes larger decisions about the underlying case. Since American law assumes that money can repair all harm, the legal system often allows companies to continue their projects even during an active lawsuit. If the judge rules that the company (or the BLM) violated the law, these defendants can compensate the harmed party with money. However, many judges recognize that money is not always an adequate reparation for harm to the environment or to cultural resources. Therefore, in such cases, judges often entertain a preliminary injunction motion.

Why did Judge Du reject the first preliminary injunction request?

In considering the environmental groups’ motion for a preliminary injunction, Judge Du acknowledged the possibility that the initial, archaeological excavations mentioned above could cause irreparable environmental harm. Although the judge ultimately decided that the smaller archaeological excavations would not cause that level of disturbance, she has not yet ruled on the environmental threat posed by the entire project.

What comes next for the environmental lawsuit?

The underlying legal case (filed back in February by Western Watersheds Project, Wildlands Defense, Great Basin Resource Watch, and Basin and Range Watch), challenges the Bureau of Land Management’s Record of Decision, which permitted the corporation’s proposed lithium mine on public land. If the judge rules in favor of the plaintiffs and against the BLM, the Record of Decision will be suspended or vacated entirely. The judge’s final decision on that case is slated for January 2022 and will assess and respond to the environmental harm of the entire proposed mining project, which includes chemical processing facilities and a 400-foot deep open pit that would destroy miles of surface area in Thacker Pass.

Lithium Nevada investors are foolish to overlook the fact that the primary legal decision on the Thacker Pass project still remains to be made. Even more significantly, Judge Du recently accepted the addition of local tribal groups to the case. The judge acknowledged that these new plaintiffs make stronger arguments – on cultural grounds – against both the archaeological digging and the entire project.

Why and how are Native Tribes and organizations getting involved?

The night before the July 21st hearing, the Reno-Sparks Indian Colony and the People of Red Mountain (a committee of land protectors from the Fort McDermitt Paiute-Shoshone reservation) made a formal motion to intervene in the case. Conceding that the lawsuit filed by Western Watersheds, etc., did not adequately represent tribal concerns, Judge Du admitted these two groups as plaintiffs to the case. The Burns Paiute Tribe, making similar arguments, has since joined the case as well. In July 2021, the judge decided to consolidate the lawsuits by adding these three indigenous groups’ lawsuit, as well as the lawsuit filed by local rancher Edward Bartell, to the original case filed by the environmental groups.

On July 27th, the Reno-Sparks Indian Colony and the People of Red Mountain moved for their own preliminary injunction, on the grounds that digging up cultural sites — including burial sites and a massacre site — would do irreparable spiritual and cultural harm to them as indigenous people whose ancestors lived in and around Peehee Mu’huh.

The indigenous groups also argue that the BLM failed to adequately consult with all relevant tribes before issuing the Record of Decision.

What will happen if Judge Du grants the Preliminary Injunction request?

If the judge supports the tribes by granting this preliminary injunction after the hearing scheduled for August 27th, the corporation and the contracted archaeological group cannot disturb Thacker Pass until the end of January at the earliest. Receiving this injunction would mean that if the BLM issues an Archaeological Resources Protection Action (ARPA) permit to Far Western Anthropological Group, allowing archaeologists to begin trenching and digging at Thacker Pass, the BLM would be doing so illegally. Granting the preliminary injunction on August 27th would likely protect Thacker Pass until at least spring of 2022, since Lithium Nevada has stated they would have to wait for winter snows to melt before digging.

What if Judge Du refuses to grant the injunction?

Even if the judge refuses to grant the injunction in August 2021, both the BLM and Lithium Nevada still face many legal hurdles. The BLM must contend with a separate lawsuit filed by local rancher Ed Bartell and not yet heard in court. This lawsuit raises environmental concerns, including threats of further depletion of the already over-allocated aquifer and harm to Lahontan cutthroat trout, a Federally-listed threatened species. Bartell and another local rancher have also challenged water rights transfers which the corporation needs for the mine.

When will the preliminary injunctions be over, and the full lawsuit be heard?

Judge Du has stated that she intends to decide on this case by early 2022.

If the judge rules in favor of the tribes, the BLM will have to restart the consultation process. This process would need to include any tribes that wish to be included, and up to ten tribes in the region have demonstrable cultural ties to the Thacker Pass. The consultation process could easily take 1-2 years, during which time local, national, and international opposition may continue to build.

If the Judge rules in favor of Bartell and/or the environmental groups, the NEPA process may need to be revisited, which could similarly take years.

Meanwhile, Lithium Nevada also still needs air and water permits from the Nevada Division of Environmental Protection, Eagle Take permits from the U.S. Fish and Wildlife Service, and the ARPA permit from the BLM before construction can begin. The corporation also still needs the BLM to set the mining reclamation bond amount.

Conclusion

Contrary to statements made by Lithium Nevada and recent media coverage, this nefarious and ill-conceived lithium mining project still remains rather far from a reality. The fate of Peehee Mu’huh truly does still hang in the balance, and if any of the current plaintiffs win their cases, this mine could take many years to properly permit. It may never happen. It is essential that all people stand up against the destruction of the planet, poisoning of water, rampant colonialism, harm to local communities, and greenwashing represented by lithium mining projects like this.

For more on the Protect Thacker Pass campaign

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