How corporations can “take” endangered species…legally:

a tutorial from environmental lawyer Will Falk

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 (LNC), 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 15^th, 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. 

For virtually every case regarding mining on public lands in the United States, the only thing at stake is whether the government cut corners in issuing permits. Obtaining a permit to mine on federal public lands is relatively easy. Corporations rarely fail to obtain a lease like Enel did in the Osage Nation case.

In the vast majority of public lands mining cases—as with Thacker Pass—the only issue is whether or not the government conducted the permitting process adequately. If a judge finds that the government cut corners, then the judge usually suspends the permit until the government corrects its mistake. And then, the project proceeds. 

Will Falk at Thacker Pass, 2021

The Endangered Species Act to the rescue—of corporate interests

Will Falk: Max Wilbert and I studied the law before we started our campaign to stop Lithium Nevada Corporation from mining Thacker Pass. We studied The Endangered Species Act (ESA) of 1973. We knew that we likely had no legal case for permanently stopping the mine. Still, we felt obliged to inform the public about LNC’s plan for Thacker Pass—and to see if a public outcry might delay the mine.

The Endangered Species Act’s Section 9 makes it unlawful for any person to “take” (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect) any endangered species of fish or wildlife within the United States—unless the Fish & Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) grants permission to do so. If an applicant submits a habitat conservation plan and the Service finds that its harm to endangered species will be “incidental,” will be mitigated, and will not appreciably reduce the survival of the species in the wild, then FWS and NMFS will issue a permit to mine or log or otherwise conduct business.

Under Section 10, the Secretaries of Interior and Commerce under defined circumstances “may permit...any taking otherwise prohibited.”¹

In his 2002 book, Acting for Endangered Species, attorney Shannon Petersen explained that, for example, “a timber company could obtain a permit to log its lands even if doing so destroyed critical habitat of an endangered species, thus ‘incidentally’ or indirectly taking such species in what would otherwise be a violation of Section 9.”²

Congress established the incidental take permitting process in 1982 amendments to the ESA. This process exempted projects from Section 9’s prohibition against harming an endangered species. The amendment was written in response to the Ninth Circuit’s ruling in Palila v. Hawaii Department of Land and Natural Resources. In that case, the Ninth Circuit held that Section 9 could be applied to prevent public or private land use activities that might indirectly kill or injure species through habitat degradation.

In the modern world, what’s constructive?

Will Falk³: Over thousands of years of humans living in the natural world, traditional laws protected it. We no longer live in that world. Contemporary laws do not protect nature. They protect capitalism and technology.

The environmental movement initiated more than a half century ago aims to stop ecocide and to heal the planet’s wounds. It aims for a world where biodiversity increases, where nature unfolds on its own terms, where background extinction slows to a natural rate.

Unfortunately, our movement has not stopped mass extinction, habitat fragmentation and intensifying ecological collapse. Our species has acclimated to 24/7 electricity, 24/7 Internet access, computers, smartphones, individually-owned vehicles, air conditioners, refrigerators, televisions, a worldwide food system that depends on fossil fuels—and so much more. Producing food, computers and appliances (and solar PVs and wind turbines) and their infrastructure requires extractions, smelters and refineries, intercontinental shipping, telecom access networks and an electric grid powered by “valuable minerals” and fossil fuels. Producing and operating industrially-made goods requires mining and leads to habitat destruction. There’s no way around this.

Now that Lithium Americas has bulldozed thousands of ecologically pristine acres to construct a mine for electric vehicle batteries, I still feel obliged to ask, how/can we stop ecocide? Could we return to dependence on local resources only? Would every person assume responsibility to live simply?

Given industrialization’s speedy damage and the slowness of making moral laws, if we still aim to stop ecological collapse, what is constructive? Recognizing that American laws do not protect the natural world would be a great first step.

ENDNOTES

1. Ruhl, J. B. "How to kill endangered species, legally: the nuts and bolts of Endangered Species Act HCP permits for real estate development." Envtl. Law. 5 (1998): 345, 349.

2. See: 16 U.S.C. §1538(a)(1)(B) and § 1532(19) and 16 U.S.C. § 1539(a).

3. Will Falk’s books include When I Set the Sweetgrass Down (poetry), Wayfarer Books, 2023, and How Dams Fall: On Representing the Colorado River in the First-ever American Lawsuit Seeking Rights for a Major Ecosystem, Little Bound Books, 2019. https://willfalk.org

See also Katie Singer and Aaron French’s article, “Mining the Sacred: questions for a sustainable relationship with the Earth.”

OTHER NEWS

SOS: The San Onofre Syndrome: Nuclear Power’s Legacy, the new documentary from Mary Beth Brangan and James Heddle about nuclear waste, will show at Albuquerque’s Cinema Guild at noon on Sunday, January 28^th. Because Holtec Corporation has proposed shipping the nuclear waste generated at the now-closed San Onofre power plant (near San Diego) to New Mexico, this film is especially relevant to anyone who lives near the truck route between southern California and New Mexico. I reviewed the film last fall. Read here about the Albuquerque event and purchase in-person tickets to it at bit.ly/47HTunk.

Dr. Henry Lai, Professor Emeritus at the University of Washington, Editor Emeritus of the journal, Electromagnetic Biology and Medicine, and an emeritus member of the International Commission on the Biological Effects of EMF, has compiled summaries of the research published from 1990 to January 2024 on the biological effects of exposure to radio frequency (RFR) and extremely low frequency (ELF) and static electromagnetic fields (EMF). Dr. Lai reports that the preponderance of the research has found that exposure to RFR or ELF EMF produces oxidative effects or free radicals and damages DNA. Most studies that examined genetic, neurological and reproductive outcomes found significant effects. 79% of more than 1,500 studies of RFR reported significant effects. 87% of more than 900 studies of ELF and static fields reported significant effects. Dr. Joel Moskowitz’s website posts the studies’ abstracts: https://bit.ly/LaiSaferEMR

Please also note Dr. Moskowitz’s recent news release that The National Toxicology Program will no longer study the effects of cell phone or radio frequency radiation (RFR) due to technical challenges and lack of resources. This news is especially disturbing in light of the substantial body of research on the adverse effects caused by RFR exposure.

Plymouth residents applaud cellphone tower denial, Yahoo news, Jan. 10, 2024.