Thacker Pass Dispatches: “Blatant Harassment”—Thacker Pass Activists Fined $50K for Providing Bathrooms to Native Elders

Image Art, used by permisssion: Travis London

Opinion

Back in January, my friend Will Falk and I founded the Protect Thacker Pass campaign to stop a proposed 17,933-acre open-pit mine in northern Nevada.

We have followed the law and conducted ourselves respectfully. But now, the Bureau of Land Management is threatening Will and I with $49,890.13 in fines for alleged trespass related to the construction of temporary latrines and a plywood windbreak. 

This is harassment, an attempt to cover up BLM’s violations of the law, and a violation of Native American religious rights.

Will, who is an attorney, is 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. The lawsuit alleges BLM violated the National Historic Preservation Act by failing to properly consult with Tribes and overlooked events like the September 12th, 1865 massacre of 31 Paiute people in Thacker Pass which was commemorated last Sunday. Will says the trespass allegations are retaliation.

“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,” he says. The trespass notice was first delivered on August 5th, 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.

BLM’s attempt to fine Will and me also violates the religious rights of Native Americans. The only reason there are latrines at Thacker Pass is because Native American elders, including disabled elders, who are regularly visiting Thacker Pass to participate in ceremonies, made repeated requests for bathroom facilities.

At the commemoration last Sunday, more than 100 mostly indigenous people, including many elders and one elder in a wheelchair who recently underwent an amputation, gathered at Thacker Pass to pray and mark the event with ceremony.

Will and I have explained to BLM officials repeatedly that the latrines are for elders participating in ceremony, and asked them for permits. Most recently, on July 24th, I asked BLM Law Enforcement Ranger Blane Parnell both verbally and in writing for a special use permit for latrines for ceremonies. On August 20, Will 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.

Back in 2019, a BLM Nevada official said “We want to work with people to make sure they aren’t in trespass before they start [activities on public lands].” Not in our case, apparently. 

The Bureau of Land Management is ignoring our permit requests and fining us for maintaining sanitation and protecting religious freedom. Meanwhile, 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.

The stated intent of the regulations BLM alleges we have violated is “to set forth rules of conduct for the protection of public lands and resources, and for the protection, comfort, and well-being of the public in its use of… public lands,” and “to ensure that public lands… can be used by the maximum number of people with minimum conflict among users and minimum damage to public lands and resources.”

Whether or not BLM likes it, there are hundreds of people coming to Thacker Pass to participate in ceremony and engage in public protest. What is a temporary outhouse and windbreak if not an effort “for the protection, comfort and well-being of the public in its use of recreation areas, sites and facilities on public lands”?

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 Will 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,” he 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.

“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.

Back at Thacker Pass, 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 BLM and supporters of the Thacker Pass lithium mine want to paint us as extremists and lawbreakers, but their narrative is weak. We work alongside local families to protect health and water. At all times, we have treated people politely, participated in the democratic process, followed the law, and even taken this argument into the court system.

BLM accuses us of “unauthorized occupancy,” but we have adhered to the 14-day limit for camping on BLM lands. I wonder what our Paiute-Shoshone friends think of the term “unauthorized occupancy”? This is unceded land. They never signed a treaty. This means that BLM is operating on unceded Indigenous territory claimed by the United States under the racist Doctrine of Discovery and seized by armed force in a series of violent wars in the 19th century.

Our laws have a long way to go to recognize historical injustices. In an 1823 Supreme Court case, “Johnson v. M’Intosh,” Chief Justice John Marshall stated that “The exclusive right of the United States to extinguish Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts.” 

Judge Marshall was wrong. The “exclusive right” he references has been doubted since the beginning. It was doubted by Winnemucca, Tecumseh, Chief Joseph, Crazy Horse, Geronimo, Osceola, Pontiac, and countless others, both native and settler. Yet one legal textbook says Johnson v. M’Intosh lays “the foundations of land ownership in the United States.” 

This is the legal basis for BLM’s authority: in the strong arm of the bully. And they accuse us of “unauthorized occupancy” for attempting to work alongside our Paiute-Shoshone friends to defend their sacred site, Peehee Mu’huh in the Paiute language, against destructive government-sanctioned mining. 

Who is unauthorized here?

Defending the land from corporate pillage is often illegal, and land defenders often face fines, arrest, or worse. More than 200 are murdered worldwide each year, with those against mining making up a quarter of the death toll. And so, as we fight a mining company, the government comes to suppress our dissent. 

Neither Will nor I are wealthy. We are not here for symbolic rebellion. We are here to stop the Thacker Pass lithium mine and raise important social issues around the new wave of mining and land destruction required for the so-called green energy transition.

Nonetheless, Will and I are vulnerable now. We are being persecuted by a rogue public agency.

We need your help to defend ourselves and this land. Visit Thacker Pass. Participate in the campaign. Join our legal defense team. Write to BLM Nevada’s state office and to the Secretary of the Interior Deb Haaland, tell them what you think of this farce, and cc the message to us. Donate to our campaign fund. Help us spread the word about this harassment and this destructive mine. 

Stand up against this mine, against greenwashing, against ongoing colonization, against the destruction of rural communities, against consumerism, and against the destruction of the planet. Stand up for life, for future generations, for water, for wildlife, for the sacred. Stand with us.


Max Wilbert is an organizer, writer, and wilderness guide. He has been part of grassroots political work for nearly 20 years. He is the co-author of Bright Green Lies: How The Environmental Movement Lost Its Way and What We Can Do About It, which was released in March.


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