Live blogging notes from the preliminary injunction hearing, Friday August 27, 2021

The wind is strong from the east this morning at #ThackerPass. Coyotes howling. Hummingbirds in the air. A jackrabbit hopped through camp in the pre-dawn. The land is alive and awake.

9:00am: Will Falk is beginning arguments now on behalf of Reno-Sparks Indian Colony and Atsa Koodakuh wyh Nuwu, People of Red Mountain.

Will Falk is describing September 12, 1865 massacre of roughly 31 Paiute/Shoshone people in the Thacker Pass area. It was committed by the 1st Nevada Calvary.

Will is arguing it is likely that the native people fled the soldiers and may have moved west into Thacker Pass.

There are over 1000 cultural resource sites and 50+ sites eligible for inclusion in the National Register of Historic Places WITHIN the Thacker Pass mine project area. Destroying these would cause irreparable harm to sacred sites and to People of Red Mountain/Reno-Spark Indian Colony.

People of Red Mountain and Reno-Sparks Indian Colony have argued that disturbing these sites is like digging up Arlington National Cemetery or Pearl Harbor – a national disgrace.

Will is arguing that the tribes believe removing artifacts is like looting – history removed from context and from the land on which is was created.

Lawyer for Burns Paiute Tribe is taking the stand.

Burns Paiute lawyer states that consultation for the archeological dig permit is “very early in the process.” Says “consultation is not normally a quick process.”

He states that BLM has “an affirmative duty” to consult with tribes. Their responsibility is to DO IT RIGHT, not the tribes’ responsibility to get involved. The law is quite clear.

“Tribes are often reluctant to reveal info about sacred sites” – lifted directly from BLM handbook.

Discussing previous case showing links between Burns Paiute Tribe has deep links to the Peehee Mu’huh / Thacker Pass region.

Strong arguments that mitigation would not alleviate the harm to Burns Paiute Tribe.

“It is known as a spiritually powerful place” – Diane Teeman, Burns Paiute Tribe

Burns Paiute Lawyer argues that National Historic Preservation Act is NOT just about bones and artifacts. It’s about landscapes. Protecting these important and historical sites.

Says this digging amounts to irreparable harm that warrants a preliminary injunction.

Says that BLM has violated that National Historic Preservation Act and it’s own policies.

BLM lawyer taking the stand now.

Arguing that BLM’s consultation was reasonable and in good faith, and arguing that People of Red Mountain should not be allowed to consult as they are not federally recognized.

BLM lawyer says that goal of their resource management plan is to protect more important landscapes. Judge challenges, repeats that tribes often do not reveal sacred sites.

BLM lawyer states they asked for stories… and basically that’s enough. The tribes should have told them everything. ?

BLM basically arguing “you had your chance, should have spoken up.” Sorry BLM. The public comment period NEVER ENDS in a democracy.

BLM arguing the tribes are outside the area of effect.

BLM says “no evidence of any massacre has come up yet.” Reno-Sparks has no particular connection to Thacker Pass area. Wow BLM. You don’t know what you’re talking about do you!

Judge challenges, says its unreasonable that BLM didn’t consult with the tribes when they HAVE done so on other projects nearby. BLM argues that was because human remains were found. They undercut their own case, arguing they must consult with lineal descendants.

BLM argues again that People of Red Mountain should have NO STANDING. As opposed to their own agency, working on unceded native land claimed through the Doctrine of Discovery? Who has no standing here BLM?

Judge asks BLM to respond to Falk argument about irreparable harm to burial sites. BLM say they do not dispute there will be harm, falls back on argument amounting to “we’ve tried our best!”

BLM says you can mitigate harm to artifacts and bones by not putting them in plastic bags, but instead not putting them in plastic bags.

BLM backtracks, says they *do* argue there will be no irreparable harm. Judge challenges them, reminds BLM they stated “we do not question cultural significance.”

“I spoke too broadly” says BLM lawyer.

BLM argues there is no evidence of grave sites. BLM is not prepared to tell tribes what they believe. Judge says their argument boils down to: “There may be important cultural sites there, but our system will mitigate any harm that could occur.”

“It’s unlikely to cause irreparable harm,” says BLM. Unlikely huh?

Judge asks: is it legal for us to defer decision on the injunction until after the permit process for the ARPA (archeological permit) has been resolved? BLM says yes, states the permit process is not likely to result in mitigation, because the tribes are saying “don’t do it.”

Lithium Nevada lawyer taking the stand. She argues the motion should be denied, “there is no harm at all.”

$LAC lawyer argues that Reno-Sparks should not be allowed to intervene because they should have told the BLM years ago “this is our territory.” She is a colonizer through and through. No recognition of the history and process of the destruction of native people, and how that plays out.

Lithium Nevada lawyer argues that one plan from years ago should have included Thacker Pass. Linear thinking ignores that native history is being reconstructed and sovereignty is rebuilt over time. Consultation is not consent.

Her argument rests on a bureaucratic detail: tribes should have used BLM process. This amounts to: “You had your chance.” We are witnessing a soulless person arguing for modern #greencolonialism.

LNC lawyer: “Everyone is on notice on the importance of Arlington National Cemetery”—not true for Thacker Pass. Judge challenges that BLM did not consult, so how could they know? Good point.

She suggests that people walking in lines across the project site should have been able to see evidence of a massacre. Says that it’s harmful to Lithium Nevada to allow tribes to halt this mine. “We’ve already spent millions of dollars.”

Lithium lawyer says that “Indian village remnants” and “violent incident” was miles from project area. Judge challenges, pointing out that Falk argues the entire area is a cemetery. Lithium lawyer responds that “the law doesn’t protect that.”

She argues “extraordinary care” for cultural mitigation. AKA: “We will very carefully desecrate and destroy your sacred sites!”

She argues that standing on the sidelines until late in the permitting process is “not in the public interest.” Which public?

She makes the national security argument. What about national security for the Paiute and Shoshone Nations? Tribes make arguments when they become aware of the issues. Project was rushed in 1 year during COVID.

Will Falk back on the stand. He argues that permitting took place in <1 year, during COVID. Rushed environmental permitting. Tribes were locked down. Federal Government has fiduciary duty to Indian tribes. And they didn’t notify tribes of biggest lithium mine in the world?

“My clients’ ancestors were massacred by the federal government.” So why be surprised they have trouble trusting BLM now? Esp. when area has seen looting in the past. Strong arguments by Falk.

“Trying to sneak projects through… fast tracking during pandemic… then when they get info about sacred sites… that is the essence of bad faith.” – Falk

Reno-Sparks has clearly told BLM they will need to consulted on projects outside their immediate area. To permit this project in 11 months and complete real consultation is ridiculous.

Falk: BLM had in their OWN RECORDS a document describing a massacre in the project area. They KNEW that Burns and Reno-Sparks were related to here. And they KNEW a history of looting in the area. And they KNEW that tribes often do not tell about sacred sites.

Falk argues that past projects in the area are not consultation, because consultation was inadequate for those projects too. Wind is strong here. The land is with Falk.

Past projects were small, consultation was inadequate. Past district-wide plans were for completely different types of projects. Tribes DID says they opposed any adverse impacts to cultural and sacred sites. Falk says fast tracking was done to deceive and bypass public opposition.

Falk: Nevada is looking to massively expand lithium mines. This one will set the tone. MUST be done right. The Historic Properties Treatment Plan (HPTP) was done without tribal consultation. Jargon hides the reality that HPTP really means looting, removing artifacts from places where tribes can now visit and learn their history with children, elders, families.

Burns Paiute Lawyer: BLM lawyer cited prior case incorrectly. Tribes did nothing wrong. Again, BLM violated their own rules. Just because a tribe said something in 2003 doesn’t mean much. Priorities and interests change.

Burns Paiute Lawyer: the tribe didn’t have to do consultation earlier. You do it when the issue arises. It’s arising now. By not having consultation, Burns tribe lost the chance to ask “should this happen at all?” Is Thacker eligible for listing on the National Register?

Burns Paiute Lawyer: no dispute this is an important place. Even archeological digging harms the religious and cultural significance, and potential for listing and protecting this place. This is irreparable harm and justifies a preliminary injunction.

Judge Miranda Du: “I will decide on this matter within a week.
BLM lawyer: We may file a motion early next week to extend the deadline out further relating to new claims being brought in the lawsuits.

That’s the end of the hearing.

The video below is the press conference held in the afternoon of August 27, 2021 following the hearing.

While researching the history of Thacker Pass / Peehee mu’huh for legal work, Will Falk found this diary entry, titled Field Notes of the Subdivision Lines in Township 44, from Oct 18, 1868:

General Description

About one half only of this Township is fit for cultivation and that is confined mostly to the grassland, which is all fine meadow and has a rich soil, about 230 tons of hay has been cut in Sec 25 this year, along both sides of the river.

Trout creek is the only mountain stream of any importance that flows through this Township. At this season of the year but little water.
The creek bed has an average width of one chain, and banks of an average height of 4ft.

It drains a considerable extent of mountain country and during the spring floods carves a very large body of water flowing through Trout Creek Valley. It has a heavy fall and rushes through the canyon in Sec. 8.17, with tremendous force. The walls of this canyon rise from 200 ft to 250 ft in perpendicular height. There are water marks here some 8ft or 10ft above it’s present level.

The sage land between the mountains and meadow is a bed of gravel worked through this canyon.

Sec. 33 is very wet meadow. In the N.W. 44 is a large clump of buffalo bush and the remains of an Indian camp. In the (dept.code), 1/4 there is an endless number of springs containing excellent water, the best indeed to be found in this section of the country.

Along the line between sec. 22, 23, and between the creek and the meadow I found the remains of an extensive Indian camp. It was at these camps that Captain _ Payne, with 100 E, 1st Nevada Cavalry, attacked and whipped a body of Indians on Sept 12th 1865. There are many Indian skulls and other remains to be found scattered over this junction of the township. I found same also opposite here on the East side of the river.

You can view a scan of the original document here.