By Brent Gardner-Smith, Aspen Journalism
The state of Colorado moved in federal court this week to dismiss a lawsuit from an environmental group and five of its members who are seeking to declare the Colorado River ecosystem a “person” and represent its interest in court.
In a filing from the attorney general’s office on Tuesday, Oct. 17, Colorado told the U.S. District Court in Denver that Deep Green Resistance and its members do not have jurisdiction to sue the state in federal court under the 11th Amendment, do not have standing in the case due to lack of a specific injury, and do not state a claim “upon which relief can be granted.”
“The complaint alleges hypothetical future injuries that are neither fairly traceable to actions of the state of Colorado, nor redressable by a declaration that the ecosystem is a ‘person’ capable of possessing rights,” the state told the federal court.
Colorado said the questions of “whether the ecosystem should have the same rights as people, and who should be allowed to assert those rights in federal courts, are matters reserved to Congress by the Constitution.”
Jason Flores-Williams, a Denver-based attorney, is representing Deep Green Resistance and its members.
“I think they are just doing their job,” Flores-Williams said Saturday morning when asked about Colorado’s motion to dismiss. “It’s how the legal system works. And it’s appropriately the correct legal move. However, I would say, you can dismiss a case, but you can’t dismiss the reality of current conditions. Either the rights of nature are going to be recognized, and we’re going to start moving in a direction toward real solutions, or they will be dismissed and we will continue going down the road we’re going down, which is highly problematic.”
The case — Colorado River Ecosystem a/n/f Deep Green Resistance v. the State of Colorado — is being heard by U.S. District Court Judge Nina Wang, and a status conference is set for Nov. 14. The case number is 1:17-cv-02316.
The Sept. 25 civil action from Deep Green Resistance asked the court to declare that “the Colorado River ecosystem is a ‘person’ capable of possessing rights,” including “the rights to exist, flourish, regenerate, and naturally evolve.”
The complaint asks that members of Deep Green Resistance be allowed to “serve as guardians, or ‘next friends,’ for the Colorado River ecosystem.” And it asks that they be able to file lawsuits to “force the state of Colorado to take certain actions, as violations of the rights of the Colorado River ecosystem.”
In its complaint, Deep Green Resistance argues that “the Colorado River Ecosystem is essential to life – human and non-human – in the American Southwest. Threats to the Colorado River Ecosystem are threats to life. Because threats to the Colorado River Ecosystem are threats to life, the Colorado River Ecosystem must possess the ability to protect itself from threats to its survival.”
But the state of Colorado rejected the idea of an ecosystem, or the “next friends” in this case, having rights to sue.
“No environmental statute or other law authorizes the ecosystem to bring a suit on its own behalf,” the state said in its motion to dismiss.
In reference to a prior case law, the state also said “there is no hint that ‘person’ includes inanimate objects, like the soil, water, and plants that, together with animals, create an ecosystem.”
In regard to the issue of personhood, the state told the court that Citizens United v. Federal Election Commission “does not provide an instructive analogy in this case.”
In its complaint, Deep Green Resistance cited the Citizens United case and told the court because “ordinary” corporations have “been repeatedly recognized as a ‘person’ for purposes of constitutional protection and enforcement” then the Colorado River deserves the same status and should be allowed to “hire a law firm, actively participate in its representation or testify in court.”
The complaint also said “the Colorado is 60 to 70 million years old and has enabled, sustained, and allowed for human life for as long as human life has been extant in the Western United States, yet the Colorado has no rights or standing whatsoever to defend itself and ensure its existence; while a corporation that can be perfected in fifteen minutes with a credit card can own property, issue stock, open a bank account, sue or defend in litigation, form and bind contracts, claim Fourth Amendment guarantees, due process, equal protection, hold religious beliefs and perhaps most famously invest unlimited amounts of money in support of its favorite political candidate.”
But the state said even if the Colorado River ecosystem had “person” status, it wouldn’t cure the river’s ills.
“There is no suggestion — even a speculative one — that declaring the ecosystem a ‘person’ would address the alleged injuries,” the state said.
For the river
The plaintiffs include Deep Green Resistance, a subcommittee of DGR called Southwest Coalition, and five Deep Green Resistance members: Deanna Meyer of Sedalia, Colo.; Will Falk of E. Heber City, Utah; Susan Hyatt of Moab, Utah; Jennifer Murnan of Longmont, Colo; and Fred Gibson of Colorado Springs, Colo.
Meyer is an animal-rights activist who has worked on protecting prairie dogs in Boulder and Castle Rock. Falk worked for a year as a public defender in Wisconsin after law school and is now an attorney, writer and activist living near Park City.
The Southwest Coalition’s tagline on its website is “Defending Mountains, Basins, Deserts, Prairies and Rivers of the Southwest.”
The first goal listed in the group’s published strategy document is “to disrupt and dismantle industrial civilization; to thereby remove the ability of the powerful to exploit the marginalized and destroy the planet.”
Deep Green Resistance told the court in its Sept. 25 complaint that it is a “worldwide, membership-based, grassroots organization” and “engages in a diversity of tactics to protect ecosystems” including “activist training programs” and “civil disobedience to confront ecological violence.”
Meyer, in a July 2015 interview posted on You Tube and Deep Green Resistance’s website, described the technique she and Brian Ertz of Wildlands Defense used in 2015 to inflict economic punishment on real estate developers by creating bad PR for them around killing prairie dogs.
“We need to radicalize people,” Meyer said at about 54 minutes into the 2015 interview. “We need to get people to do things much differently.”
She said “the yoga and the praying and the whatever, the petitions, and all that, it’s not going to do a damn thing. You’ve got do something that’s going to hurt these developers, or killers, or profiteers.”
With Meyer in the interview is Brian Ertz of Wildlands Defense of Idaho.
Meyer once served on the Wildsands Defense board, and worked part time for Wildlands Defense, after she and Ertz accepted a settlement payment in June 2015 from the developers of the Promenade mall in Castle Rock, Alberta Development Partners, LLC.
In November 2016, Meyer sued Ertz over the proceeds of the settlement, which were to be put toward preserving prairie dog habitat, in Meyer v. Ertz in U.S. District Court in Denver (16CV2897). The case was settled in February 2017.
As part of the case, Katie Fite, who worked for nine years as a senior wildlife technician at the Idaho Department of Fish and Game before co-founding Wildlands Defense, filed an affidavit on Jan. 8, 2017, describing Meyer’s time with Wildlands Defense.
Meyer “talked about wanting to get people stirred up so they would go out and stand in front of the bulldozers, with hazy aim,” Fite said. “Over time, I realized Meyer seemed to be enthralled with highly controversial advocacy methods promoted by Deep Green Resistance (“DGR”) and its founder, Derrick Jensen.”
Jensen, in a December 2015 interview about his radio program, said he was interested in Colorado River issues, but only from the perspective of the river.
“When I ask to interview somebody about the natural world, the question I always ask them first is ‘are you biocentric?’ Jensen said. “Because I’m not really interested in how the Colorado River is going to be used for irrigation in Arizona. If somebody wants to talk about that, they can talk about that on mainstream news. I’m really interested in the Colorado River’s perspective.”
Both Meyer and Ertz have been interviewed by Jensen on his Resistance Radio program. Jensen is also the author of a book called “Deep Green Resistance: Strategy to Save the Planet.”
In its Sept. 25 complaint, in which Jensen is not named, Deep Green Resistance lays blame for the depleted state of the Colorado River on the state of Colorado.
“One reason the Colorado River rarely reaches the sea is the compacts and laws that regulate how much water can be diverted from the river allow humans to take more water from the river than physically exists,” the complaint from Deep Green Resistance said. “The state of Colorado takes more water from the river than any of the other jurisdictions, save California.”
But the state, in its motion to dismiss, denies culpability for the condition of the Colorado River.
“Any injury that might result in the future from alleged ‘overallotment’ of water from the Colorado River cannot be fairly traceable to the state,” Colorado’s motion said.
The state also said Deep Green Resistance was asking the court “to make sweeping declarations that would fashion new law out of whole cloth.”
“It asks the court, rather than Congress or the executive branch, to declare that the ecosystem is a ‘person whose rights — whatever they might be — can be defended in court by self-declared representatives,” the state said. “Such a declaration has the potential to alter the fabric of American domestic and foreign policy.”
Peter Fleming, the general counsel for the Colorado River District, described the lawsuit from Deep Green Resistance in a mid-October memo to the district’s board of directors, who represent 15 Western Slope counties.
He notes that in addition to seeking “personhood” for the river ecosystem, Deep Green Resistance was also alleging “that the State of Colorado can be held liable for violating the River’s rights.”
“The premise of this lawsuit is certainly unique in Colorado (as well as the nation) but it is not completely without precedent,” Fleming wrote. “As noted in the complaint, Ecuador has amended its constitution to recognize the rights of ecosystems. Likewise, jurisdictions in Colombia and India have found rivers to have certain rights that warrant protection.”
But Fleming said, “if successful, the lawsuit would be precedential not only in Colorado but throughout the country” and that “a ruling granting the requested relief could totally upend environmental litigation.”
He also addressed the claim of “next friend.”
“A key question would be why any specific group of individuals should be entitled to serve as an ecosystem’s “next friend” as opposed to any other group of individuals, organizations, municipalities, or states,” Fleming wrote. “The fights over the right to be appointed ‘next friend’ status alone would be chaotic – not even taking into consideration the unique claims that could be asserted.”
He said the state attorney general’s office “will be taking the lead on Colorado’s behalf,” but “will receive lots of help from others in opposing the lawsuit” and that he had “already offered the River District’s help.”
In a post on the Deep Green Resistance website about the Colorado River lawsuit, Falk, one of the “next friends,” weighs the chances of his group’s complaint succeeding.
“We may win in court and corporations will have to respect the Colorado River’s rights to exist, flourish, regenerate, and naturally evolve,” Falk wrote. “We will also gain a foothold for other ecosystems to assert their own rights. We may fail in court, but that does not mean the fight is over.
“In many ways, our failure would simply confirm what we already know: the legal system protects corporations from the outage of injured citizens and ensures environmental destruction. If we fail, we must remember there are other means — outside the legal system — to stop exploitation.”
Editor’s note: Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs, Post Independent, the Vail Daily and the Summit Daily News. The Times published a shorter version of this story on Saturday, Oct. 21, 2017.