January 28, 2021
RE: Enforcement of 14-Day Camping Limit Against Thacker Pass Lithium Mine Protestors
Ms. McCullough, Officer Briscoe, Officer Parnell and other relevant Bureau of Land Management Staff:
The Protect Thacker Pass Occupation is a protest of Lithium Americas’ proposed Thacker Pass open pit lithium mine and is an exercise of William Falk’s, Max Wilbert’s and other protestors’ rights to free speech under the United States Constitution’s First Amendment.
On Friday, January 15, 2021, after the Bureau of Land Management (BLM) issued a Record of Decision and Plan of Operations Approval for the Thacker Pass Lithium Mine Project, William Falk and Max Wilbert set up an occupation within the geographical boundaries of the proposed mine site in Thacker Pass. They pitched a small two-person tent with a small wood burning stove, stacked a half-cord of firewood, used some wood pallets they found on site to construct a table for their cooking equipment, and parked each of their personal vehicles on a site previously cleared of vegetation and leveled in the construction of a weather station containing a solar panel and anemometer. They also hung two banners from the chain link fence surrounding the weather station. One banner is approximately 10 feet tall and 20 feet wide and declares in bold letters “Protect Thacker Pass.” The other banner is approximately 5 feet tall and 8 feet wide and declares: “Anti-Mine Protest.”
From their occupation, Falk and Wilbert created a website ProtectThackerPass.org and announced their presence in Thacker Pass publicly through a series of press releases. They began: writing; recording podcasts and videos; giving media interviews to local, national, and international press; taking photographs; and creating social media content to raise public awareness of this massive mine and to ask critical questions about a matter of national importance – the environmental impacts of alternative energy projects.
This occupation was established to protest the mine, call attention to the environmental harms caused by alternative energy, and most importantly, to gain a first-hand, eye-witness account of how the mine would affect the plants, animals, and insects who live in Thacker Pass. Falk and Wilbert cannot provide this eye-witness account from outside the geographical boundaries of Thacker Pass.
Title 43, Section 8365.1-2(a) of the Code of Federal Regulations states that “[o]n all public lands, no person shall camp longer than the period of time permitted by the authorized officer.” And, on January 21, 2021, BLM Field Staff Law Enforcement Ranger Blaine Parnell, accompanied by two other officers, visited the occupation to inform Falk and Wilbert that the officers had viewed the occupation’s website, that Falk and Wilbert could not remain in Thacker Pass for longer than 14-days, and that if Falk and Wilbert wished to continue camping on public lands, they would have to find a place outside of a 25-mile radius of their current site.
Despite Falk and Wilbert’s assertion that they wished to maintain an amicable relationship with local law enforcement and that their occupation was one of protest, Officer Parnell told the protestors that if they did not vacate the area by January 29, they could face a $200 fine. He also explained that the purpose of the regulation was to limit the impact campers have on any one site on public lands.
Regardless, the First Amendment protects expressive conduct like protest occupations  . The Supreme Court has recognized that overnight sleeping in connection with demonstration is expressive conduct . If BLM attempts to enforce the 14-day camping limit, it will engage in an unconstitutional restriction of Falk and Wilbert’s First Amendment rights. Falk and Wilbert are prepared to challenge this restriction in federal court.
When determining whether government restrictions infringe on First Amendment rights, federal courts review whether the restriction is justified without reference to the content of the regulated speech, whether the restriction is narrowly tailored to serve a significant governmental interest, and whether they leave open ample alternative channels for communication of the speech being restricted.
First, it is true that BLM’s 14-day camping restriction is typically justified as a means to control the impact campers have on public lands. However, in this situation, BLM officers are likely only aware of Falk and Wilbert’s occupation of Thacker Pass because Falk and Wilbert announced their protest through press releases, social media, and traditional media platforms including local news stories. It is highly unlikely that BLM – with its small law enforcement staff and huge geographical jurisdiction – would have visited Falk and Wilbert, or even known of their presence, if Falk and Wilbert were not protesting.
In fact, during the January 21st visit, Officer Parnell explained that he was the only law enforcement ranger based out of the Humboldt Field Office. This statement – along with the BLM officers’ statements that they had visited the protesters’ website prior to visiting the protest site – tends to support the conclusion that if BLM does enforce their camping restriction against the protesters, it would only be enforcing the restriction precisely because it is a protest. In other words, this enforcement would be an unconstitutional, content-based restriction.
It is unclear how Officer Parnell and the Humboldt Field Office learned of the protesters’ presence at Thacker Pass, but the possibility that Lithium Americas Corp. or its subsidiary Lithium Nevada informed the BLM of the protesters cannot be discounted. If true, this would lend further evidence to support the notion that enforcement of the camping limit would be a significantly content-based restriction.
Second, seeking to enforce the 14-day camping limit against Falk and Wilbert would be nowhere near “narrowly tailored to serve a significant governmental interest.” Protecting public land from human impacts is a significant governmental interest. But, requiring campers to move 25 miles is too excessive to be considered narrowly-tailored. Requiring campers to move 5 miles, or even 1 mile away, would achieve the same protection from campers’ impacts.
The removal distance is largely irrelevant, however, because BLM has already given their final approval to Lithium Americas to impact Thacker Pass by digging a massive open pit mine. This is an impact that Falk, Wilbert, and other protestors simply will never be capable of. If they were capable of such an impact, BLM could narrowly-tailor its restriction to prevent the protestors from affecting Thacker Pass beyond the impact the open pit mine would have. But, since they cannot hope to come close to the permanent damage expected from over nine square miles of mining and processing, the narrow tailoring of the restriction to serve BLM’s interest in protecting public lands that is required by federal courts means allowing the protestors to stay.
Consider that – according to BLM’s own Record of Decision (ROD) – Lithium Americas’ Thacker Pass project would “include the development of an open pit mine, waste rock storage facilities, a coarse gangue stockpile, a clay tailings filter stack, growth media stockpiles, haul and secondary roads, and additional mine facilities to support mining and lithium production operations.” The ROD goes on to explain that “the Project area includes 17,933 acres of land…” and that “the total disturbance footprint would be approximately 5,695 acres.” Meanwhile, Falk and Wilbert, to minimize the impact of their occupation, chose an already disturbed site approximately one-tenth of an acre in size that had been previously cleared of vegetation and leveled in the construction of the weather station, and which is located within the geographical boundaries of the site Lithium Americas has been permitted to destroy for their open pit mine. Additionally, Wilbert has worked as a professional wilderness guide with over 15 years of experience practicing “Leave No Trace” principles. Falk and Wilbert are diligently practicing these principles in Thacker Pass.
The effect of the protestors’ presence at Thacker Pass is negligible, especially when compared to the impact an open pit lithium mine will have. If corporations can destroy over 5,000 acres of public land for an open pit mine and make billions of dollars in profit, then human beings should be allowed to sleep and protest against permanent destruction of the same exact place without being fined or arrested. To fine the protestors $200 for camping on land that will be destroyed for a mine that will make Lithium Americas billions of dollars is irrational, hypocritical, absurd, and is certainly not narrowly tailored.
Finally, BLM’s enforcement of the 14-day camping limit, with the caveat that if Falk and Wilbert want to remain on public lands they have to remove themselves to somewhere beyond a 25-mile radius of their current location would arbitrarily deprive the protestors of alternative channels for providing protection of, and publication of first-hand, eyewitness accounts of the harm to specific habitat, creatures, and communities from Lithium Americas’ mine. Falk and Wilbert need to be in Thacker Pass to describe harms to the habitat and creatures. Additionally, pushing Falk, Wilbert, and other protestors 25-miles away would also leave them with no alternative channel for bearing witness to the harms that the mine would cause to the human communities immediately surrounding Thacker Pass.
To conclude, the protestors have been clear that their continuous presence in Thacker Pass is a protest from the beginning of their occupation. While Falk, Wilbert, and other protestors will have some minimal impact on Thacker Pass as all animals do wherever they are found, their presence might prevent the much greater impact the construction of an open pit mine would have on public lands. A comparison of the impact the protestors would have on Thacker Pass to the impact Lithium Americas’ massive, open pit lithium mine would have on Thacker Pass is obviously ridiculous.
Because Falk and Wilbert’s occupation of Thacker Pass is expressive conduct protected by the First Amendment, if BLM seeks to enforce the 14-day camping limit against them, they will contest this enforcement in federal court.
On Behalf of Thacker Pass and the Natural World,
 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 569 (1995)
 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984).