Thacker Pass Protectors File First-Ever “Biodiversity Necessity Defense” in Nevada Court
Attorney: “They’re not criminals; they’re heroes.”
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.
This press release shares the latest update on the legal case against myself and a group of other people being sued for our protests at Thacker Pass. Media contact: Protect Thacker Pass.
WINNEMUCCA, NV — In a first for the American legal system, the lawyers for six people sued by Lithium Nevada Corporation for protesting the Thacker Pass mine are arguing a ‘biodiversity necessity defense.’
The necessity defense is a legal argument used to justify breaking the law when a greater harm is being prevented; for example, breaking a car window to save an infant locked inside on a stifling hot day, or breaking down a door to help someone screaming inside a locked home. In these cases, trespassing is justified to save a life.
This week’s filing states that “Defendants possessed an actual belief that their acts of protest were necessary to prevent the present, continuing harms and evils of ecocide and irreversible climate change.”
“We’re in the midst of the 6th mass extinction of life on Earth, and it’s being caused by human activities like mining,” said attorney Terry Lodge, who is representing the protesters. “Our lives are made possible by biodiversity and ecosystems. Protecting our children from pollution and biodiversity collapse isn’t criminal, it’s heroic.”
Currently Earth is experiencing one of the most rapid and widespread extinction events in the planet’s 4-billion-year history.
Biologists report that habitat destruction, like the bulldozing of nearly 6,000 acres of biodiverse sagebrush steppe for the Thacker Pass mine, is the main cause of this “6th Mass Extinction.”
Permitting documents for the Thacker Pass mine show the project will harm or kill pronghorn antelope, golden eagles, mule deer, migratory birds, burrowing owls, bobcats, roughly a dozen bat species, various rare plants, and hundreds of other species.
The U.S. Fish and Wildlife Service is currently being sued by environmental groups in an attempt to secure protection for a rare snail species who lives in Thacker Pass and who are threatened with extinction.
“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.”
In their court filing earlier this week, Lodge and the other attorneys working on the case made several additional legal arguments, including invoking the doctrine ‘unclean hands,’ asserting that Lithium Nevada Corporation has “engaged in serious misconduct including violating the Defendants’ human rights, Defendants’ civil rights, misleading the public about the impacts of lithium mining and how lithium mining contributes to climate change and biodiversity collapse, and conducting the inherently dangerous and ecologically-destructive practice of surface mining at the Thacker Pass mine”.
They’re also arguing the “climate necessity defense,” reasoning that by attempting to stop a major mine that will produce significant greenhouse gas emissions, the protesters were acting to reduce emissions and stop a bigger harm: climate change.
According to permitting documents, the Thacker Pass lithium mine is expected to produce more than 150,000 tons of carbon dioxide equivalent per year, roughly equivalent to the emissions of a small city and amounting to 2.3 tons of carbon for every ton of lithium that will be produced.
This legal strategy has been used by many fossil fuel protesters around the world for roughly a decade (and has been successful in a few cases), but this is the first time the same argument has been applied to a ‘green technology’ minerals mining project.
“Lithium Nevada, a mining corporation benefiting from the violence used to conquer Native peoples, is trying to bully peaceful protestors opposing the destruction of that massacre site,” said Will Falk, an attorney and one of the defendants in the case. “People need to understand that lithium mining companies—like coal or gold mining companies—use racist and violent tactics to intimidate opposition.”
“The Indian wars are continuing in 2023, right here,” Barlese says. “America and the corporations who control it should have finished off the ethnic genocide, because we’re still here. My great-great-grandfather fought for this land in the Snake War and we will continue to defend the sacred. Lithium Nevada is a greedy corporation telling green lies.”
Bethany Sam:
“Our people couldn’t return to Thacker Pass for fear of being killed in 1865, and now in 2023 we can’t return or we’ll be arrested. Meanwhile, bulldozers are digging our ancestors graves up. This is what Indigenous peoples continue to endure. That’s why I stood in prayer with our elders leading the way.”
Bhie-Cie Zahn-Nahtzu:
“Lithium Nevada is a greedy corporation on the wrong side of history when it comes to environmental racism and desecration of sacred sites. It’s ironic to me that I’m the trespasser because I want to see my ancestral land preserved.”
"It is truly outrageous that we live in a society where our Supreme Court has granted constitutional rights to resource extraction corporations, making their destructive activities fully legal and virtually immune from oversight by We the People. Even their right to sue us is a corporate personhood right," said defendant Paul Cienfuegos, founding director of Community Rights US.
“Lithium mining for electric vehicles and batteries isn’t green, it’s greenwashing,” says Max Wilbert, co-founder of Protect Thacker Pass and author of the book Bright Green Lies: How the Environmental Movement Lost Its Way and What We Can Do About It. “It’s not green, it’s greed. 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.”
Earlier this month, the judge presiding over the case dismissed an “unjust enrichment” charge filed against the protesters, but allowed five other charges to move forward. The case is expected to continue for months.
About the Case
The lawsuit against the protestors 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.
On September 12th, 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.
To contribute to the legal defense fund for the Thacker Pass defendants, click here.
I’d like to read the briefing for the necessity defense, if you are able to link it. Or could you give me the case number, and I can grab it off Pacer. I’m loving this strategy! Also, the paintings of the defenders are so good. Thanks for sharing those.
Great work, truly heroic and inspiring. Keep going.