Thacker Pass, Nevada, 2021
In December, 2023, when a federal judge ordered the Enel Corporation to remove 84 wind turbines from Osage Nation land, I asked environmental lawyer Will Falk about the case's relevance to Lithium Nevada Corporation's (LNC's) mine at Thacker Pass, Nevada. In 2020, Falk and Max Wilbert began trying to stop LNC from constructing a lithium mine at Thacker Pass. Before I share Will's explanation about the difference between these cases, please note that anything with a battery--a flip phone, a smartphone, a laptop, an off-grid solar PV system, an electric vehicle, a smart utility meter, a utility-scale battery-electric storage system (BESS)--likely holds lithium. Then, here's a summary of the unsuccessful effort to stop lithium mining at Thacker Pass.
The movement to prevent lithium mining at Thacker Pass
In 2020, Lithium Nevada Corporation, an American subsidiary of the Canadian-controlled Lithium Americas Corporation (LAC), submitted an application to mine lithium at Thacker Pass, Nevada. After learning that the Trump administration was fast-tracking the permit, Max Wilbert and Will Falk decided to try to protect the Pass's ecosystem and prevent the mine. Sixteen million years in the making, Thacker Pass's 18,000 acres hold pygmy rabbits, golden eagles, Lahontan cutthroat trout, rabbit-brush flowers, sagebrush, all manner of pollinating insects and much, much more.
On January 15th, 2021, the Bureau of Land Management (BLM) determined that LAC had properly completed its National Environmental Policy Act (NEPA) permitting process; and BLM granted the corporation a permit to construct the mine at Thacker Pass. On the same day, Max Wilbert and Will Falk set up camp on land the corporation planned to ravage.
Shortly after arriving at Thacker Pass, Max and Will informed nearby Paiute and Shoshone tribes about the mine. At their camp, tribal elders told stories and prayed for protection of their ancestors and the land. Max and Will welcomed other visitors who also aimed to protect Thacker Pass; they spoke with reporters. When elders needed bathroom access while they visited the camp, the men built simple outhouses.
In July 2021, Will Falk filed a lawsuit on behalf of the Reno-Sparks Indian Colony (RSIC) and the People of Red Mountain. Later, the Burns Paiute Tribe, represented by another lawyer, joined the case. The lawsuit aimed to postpone any construction of the mine until BLM fulfilled its consultation obligations with the tribes. In Autumn, 2021, Judge Miranda Du ruled that the BLM had likely complied with federal laws; she denied a preliminary injunction to stop construction. This was the first of a long series of legal defeats.
In August 2021, a week after Falk filed suit against the BLM on behalf of RSIC and the People of Red Mountain, the BLM notified him that the agency was investigating him and Max for trespass for constructing the outhouses. In November 2021, BLM fined Max and Will $49,890.13 for building a latrine without a permit on BLM land. Max and Will quickly appealed this fine to the Department of the Interior's Interior Board of Land Appeals (IBLA). As of early 2024, IBLA has not ruled on their appeal.
In October 2021, when BLM threatened further fines and legal action unless Max and Will closed the camp, they closed their camp.
In June 2023, Lithium Nevada Corporation sued four tribal members, Will Falk, Max Wilbert, their organization Protect Thacker Pass, and one other for Civil Conspiracy, Nuisance, Trespass, Tortious Interference with Contractual Relations, Tortious Interference with Prospective Economic Advantage and Unjust Enrichment ("profiting" by fundraising for expenses to protect Thacker Pass). This case has not been settled.
The difference between the Osage and Thacker Pass cases
Will Falk explains: The federal government holds the title to Osage Nation's land in trust. The Osage Nation owns the land's mineral rights. Because the wind facility at Osage Nation involved mineral extraction, Enel Corporation should have obtained a mineral lease from the federal government. Since the corporation failed to obtain this lease, the court ruled in Osage Nation's favor--and ordered Enel to remove the wind turbines.
Lithium Nevada Corporation's mine at Thacker Pass is on federal public land; and the U.S. General Mining Law of 1872 therefore applies. This law gives corporations the right to mine "valuable minerals" on public land. In the Thacker Pass case, we therefore could not argue that Lithium Nevada Corporation lacked a valid claim to mining the land. Here, "valid" does not mean morally correct. It means legally protected. In this regard, the law is settled.
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