Judge Tosses One Claim Against Thacker Pass Protectors

Rejects "Unjust Enrichment" Claim, But Five Other Claims Proceed in Ongoing Lawsuit Over Spring 2023 Protests

Darkness falls over a ceremonial tipi at Thacker Pass in May 2021, as a non-violent prayer action led by Northern Paiute elders takes place in the midst of construction for an open-pit lithium mine. Photo by the author.

Welcome to Biocentric, a newsletter focused on sustainability, greenwashing, and building a resistance movement to defend the planet. I’m Max Wilbert, co-founder of Protect Thacker Pass and co-author of ‘Bright Green Lies: How the Environmental Movement Lost Its Way and What We Can Do About It.’ Biocentric subscriptions are free, but paying for a subscription supports the community organizing work you read about here, and gets you access to behind-the-scenes information and unreleased drafts.

The following is a press release I helped write which was published by Protect Thacker Pass this week. There is more background information in this piece from June 2023.

I'm Being Sued For Defending The Land

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WINNEMUCCA, NV — A judge has dismissed an “unjust enrichment” charge filed against seven people sued for protesting the Thacker Pass lithium mine in Nevada, but allowed five other charges to move forward.

District Judge Michael R. Montero rejected Lithium Nevada Corporation's claims that protesters had engaged in unjust enrichment by writing online messages encouraging supporters to donate, ruling that these messages are "protected speech under the First Amendment."

"One of the great ironies of our times occurs when corporations trashing the earth for mega-profits try to label water protectors and defenders of our last wild places as 'greedy,'" says Terry Lodge, an attorney representing six of the protesters. "This is a very significant win for my clients and a rebuke to Lithium Nevada."

"It isn't illegal or wrong to fundraise for community organizing and for our legal defense," says Max Wilbert, one of the defendants. “But,” Wilbert says, “we’ve still got a long way to go in this case.”

While one portion of Montero's ruling was favorable to the protesters, other portions were not. Judge Montero issued a prelimary ruling in Lithium Nevada's favor on five other claims. But, Lodge says that at this stage, the judge was not determining whether Lithium Nevada's claims are true or not. He was simply reviewing Lithium Nevada's allegations, taking them as true, and determining whether those allegations were violations of Nevada law.

These five other claims will now move into the next stage in the ongoing suit. During the "discovery" stage, both Lithium Nevada and the defendants will have an opportunity to gather evidence.

Native Land Claims “Frivolous”

In another part of his ruling, Judge Montero called arguments that a Paiute protester has a right to access the September 12, 1865 Thacker Pass massacre site within Lithium Nevada's mine site to pray for massacred Paiute ancestors "frivolous". The ruling states that recognizing traditional native land claims "would unequivocally undermine each and every property owner's rights" and concludes that "[t]his is a Pandora's box the Court is unwilling to open."

The defendants are seeking monetary donations to their legal defense fund. You can donate via credit or debit card, PayPal (please include a note that your donation is for Thacker Pass legal defense), or by check.

Arlo Crutcher Removed at Fort McDermitt

In other news, Fort McDermitt Paiute-Shoshone Tribal Chairman Arlo Crutcher has been voted off the tribal council after attacking and choking a tribal youth in mid-January.

Crutcher was the key figure behind the Fort McDermitt Paiute-Shoshone Tribe’s cooperation with Lithium Nevada Corporation.

The January attack took place as the youth — a mine opponent — attempted to film Crutcher and other tribal leaders meeting with Lithium Nevada employees Tim Crowley (VP of Government and External Affairs) and Maria Anderson (Community Relations Director).

Mine opponents blame this violence on Lithium Nevada’s “divide and conquer” techniques.

About the Case

The suit was filed in May 2023 following a month of non-violent protests on the site of the Thacker Pass lithium mine in northern Nevada. Thacker Pass is known as Peehee Mu’huh in Paiute, and is a sacred site to regional Native American tribes. It’s also habitat for threatened and endangered wildlife.

Analysts say the lawsuit is similar to what is called a “Strategic Lawsuit Against Public Participation,” or SLAPP suit, aimed at shutting down Constitutionally-protected free speech and protest. It aims to ban the water protectors from the area and force them to pay monetary damages.

“Our ancestors fought and died for the land at Peehee Mu’huh,” says Dean Barlese, an elder and spiritual leader from the Pyramid Lake Paiute Tribe who is one of the defendants in the case. “We’ve acted for the coming generations to protect Mother Earth.”

On September 12^th, 1865, federal soldiers murdered at least 31 Paiute men, women, and children in Thacker Pass during “The Snake War.”

This massacre and other culturally important factors have made the Thacker Pass mine extremely controversial in the Native American community. Dozens of tribes have spoken out against the project, and four — the Reno-Sparks Indian Colony, Summit Lake Paiute Tribe, Burns Paiute Tribe, and Winnemucca Indian Colony — battled in court to stop the Thacker Pass mine. The National Congress of American Indians has also passed several resolutions opposing the project.

But despite ongoing criticism, lawsuits, and lobbying from tribes as well as environmental groups, ranchers, the Nevada State Historic Preservation Society, and the Advisory Council on Historic Preservation, both Lithium Nevada Corporation and the Bureau of Land Management have refused to stop construction or change any aspect of the Thacker Pass mine.

In February 2023, the Bureau of Land Management recognized Thacker Pass as eligible for the National Register of Historic Places as a “Traditional Cultural District,” or a landscape that’s very important to tribes. But the very day before, they issued Lithium Nevada’s final bond, allowing the Canadian multinational to begin full-scale mining operations.