#ColoradoRiver ‘personhood’ case pulled by proponents — @AspenJournalism #COriver

Rodeo Rapid, on the upper Colorado River. A federal judge has dismissed a case seeking personhood rights for the river, after the plaintiffs’ attorney agreed with the state of Colorado that he should pull the lawsuit. Photo credit: Brent Gardner-Smith Aspen Journalism

From The Glenwood Springs Post Independent (Lindsay Fendt):

A novel case seeking personhood for the Colorado River will not proceed in federal court after the plaintiffs filed a motion Sunday to dismiss their own lawsuit and a judge on Monday granted the motion and dismissed the case.

The case, filed against the state of Colorado, would have been the first federal lawsuit seeking to establish legal rights for nature in the United States.

“The undersigned continues to believe that the [rights of nature] doctrine provides American courts with a pragmatic and workable tool for addressing environmental degradation and the current issues facing the Colorado River,” reads the motion to voluntarily dismiss the case from attorney Jason Flores-Williams. “That said, the expansion of rights is a difficult and legally complex matter.”

Flores-Williams opted to pull the complaint in part due to possible sanctions threatened by the Colorado attorney general’s office if he continued with the case in U.S. District Court in Denver.

“Situations change,” Flores-Williams said speaking Monday after withdrawing the case, “and what is best for the rights of nature movement is not to get involved in a lengthy sanctions battle, but to move forward with seeking environmental justice.”

According to a letter sent Nov. 16 by Scott Steinbrecher, a senior assistant attorney general for Colorado, the state was considering seeking sanctions against Flores-Williams under Rule 11 of the federal rules of civil procedure, which allows U.S. District Courts to punish lawyers for pleadings with improper purpose or frivolous arguments. The rule allows punishments ranging from censure to disbarment and the sanctions typically carry hefty fines.

“The purpose of this letter is to request that you consider voluntarily dismissing with prejudice the amended complaint,” Steinbrecher wrote to Flores-Williams on Nov. 16. “If you choose not to voluntarily withdraw your amended complaint with prejudice … you are hereby on notice that the defendant will pursue all sanctions and remedies available … .”

Flores-Williams filed his own voluntary motion to dismiss on Sunday, two days after he gathered with rights of nature activists outside the federal courthouse in downtown Denver. The group passed around a bowl of water from the Colorado River and played music affirming their commitment to creating a legal right to nature in U.S. courts.

The filing by Flores-Williams was titled an “unopposed motion to dismiss amended complaint with prejudice.” And in the process of agreeing to dismiss his own case, Flores-Williams summarized the situation as he saw it.

“The complaint represented a good faith attempt to introduce the rights of nature doctrine to our jurisprudence,” he wrote. “The rights of nature — specifically, the legal standing of natural entities — was first recognized by the Honorable William O. Douglas in his dissent in Sierra Club v. Morton and is being increasingly utilized as a legal doctrine by countries around the world.”

On the other hand, Flores-Williams also told the court that, “when engaged in an effort of first impression, the undersigned has a heightened ethical duty to continuously ensure that conditions are appropriate for our judicial institution to best consider the merits of a new canon. After respectful conferral with opposing counsel per (state law) plaintiff respectfully moves this honorable court to dismiss the amended complaint with prejudice.”

The case was filed on Sept. 25 and was titled “The Colorado River Ecosystem a/n/f (and next friends) Deep Green Resistance, the Southwest Coalition, Deanna Meyer, Jennifer Murnan, Fred Gibson, Susan Hyatt, Will Falk v. State of Colorado.”

The next day, the New York Times ran an article about the lawsuit with the headline “Corporations Have Rights. Why Shouldn’t Rivers?”

The state filed a motion to dismiss the case on Oct. 17.

Flores-Williams then filed an amended complaint, on Nov. 3, that also named Colorado Gov. John Hickenlooper as a defendant and added two new plaintiffs, both from Moab, Utah: Owen Lammers, as Living Rivers’ executive director, and John Weisheit, as the “Colorado Riverkeeper.”

The attorney general’s office then sent its letter to Flores-Williams on Nov. 16, to which he responded, with a defiant tone, on Nov. 28.

On Dec. 1 the state filed a second motion to dismiss the case, and then on Dec. 3, Flores-Williams took the step to pull the lawsuit.

Judge Nina Wang issued a court order Monday granting the motion to dismiss.

“When it comes to these big ideas no one owns them,” Flores-Williams said Monday. “There is movement on the ground now, and as long as that is there it will make its way into the courts.”

Editor’s note: Aspen Journalism is collaborating on coverage of rivers and water with Glenwood Springs Post Independent, The Aspen Times, the Vail Daily, and the Summit Daily News. More at http://www.aspenjournalism.org.

Climate science is partly about measuring cow farts (and burps)

Summit County Citizens Voice

Ag methane emissions still a moving target

Methane from cows is a significant source of heat-trapping greenhouse gas pollution. Exactly how much is still a moving target. @bberwyn photo.

Staff Report
Meat production accounts for a huge slice of global methane emissions no matter how you count it, but as with other heat-trapping greenhouse gases, you need to have an accurate estimate to determine whether reduction efforts are working.

A new study, led by a Penn State researcher and partially funded by Exxon, suggests that the current estimates used by the EPA may be close to the mark, and that other recent estimates based on aerial sampling and satellite data may be too high.

According to the EPA, the top three sources of anthropogenic methane in the United States are the combined energy sector — natural gas, petroleum systems and coal mining — which makes up 40 percent of the…

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Snowpack news:

Click on a thumbnail graphic to view a gallery of snowpack data from the NRCS.

And here’s the Westwide SNOTEL basin-filled map for December 4, 2017 from the NRCS.

Westwide SNOTEL basin-filled map December 4, 2017 via the NRCS.

State files again to dismiss Colorado River ‘personhood’ lawsuit, threatens to sanction lawyer

Protesters advocating for “personhood” rights for the Colorado River cast the words, via a projector, “Colorado River Rights of Nature” onto a building in Denver on Friday, Dec. 1, 2017.

By Lindsay Fendt, Aspen Journalism

DENVER — Protesters spurred on by the environmental group Deep Green Resistance gathered at dusk in front of the Alfred A. Arraj Courthouse in downtown Denver Friday. High above their heads, the words “Colorado River Rights of Nature” loomed, lit by a spotlight projector placed outside the protester circle.

The activists had come in support of a first-of-its-kind lawsuit in the United States, the Colorado River Ecosystem v. the State of Colorado, which seeks to grant direct rights to nature in the U.S. If successful, the case would allow anyone to file a lawsuit on behalf of the Colorado River ecosystem, including all the river’s tributaries.

And even as the protesters gathered on Friday, the attorney general’s office filed a second motion with the federal court to dismiss the lawsuit. A Dec. 1 deadline to do so had been set by the court in response to an amended complaint filed by the plaintiffs on Nov. 6.

But Friday’s protest was in response to a Nov. 16 letter sent by the Colorado attorney general’s office. The state’s attorneys threatened that if the plaintiffs did not withdraw the case they would file sanctions against Jason Flores-Williams, the lawyer representing the Colorado River and its “next friends” — members of Deep Green Resistance and others that have been appointed to represent the river’s interests.

Sanctions could range from censure to disbarment and could bill Flores-Williams for the hours incurred by the attorney general’s office while managing the case.

Responding to an interview request, the attorney general’s office declined to comment on its letter threatening sanctions.

Jason Flores-Williams, the lawyer representing “The Colorado River Ecosystem,” speaks to protesters outside the Alfred A. Arraj Courthouse in downtown Denver on Friday, Dec. 1, 2017.

Intimidation?

On Friday, standing before the crowd in a blue plaid suit and a backwards baseball cap, Flores-Williams reaffirmed that he would go forward with the case despite the sanctions at stake.

“They thought that by trying to intimidate me they would intimidate the rights of nature movement, instead it is going to invigorate it,” Flores-Williams said in a previous interview.

On Nov. 28, Flores-Williams had responded to the attorney general’s office with an open letter.

“Lacking actual legal grounds, the attorney general’s letter can only be understood as an attempt to harass me and silence the rights of nature movement,” said Flores-Williams’ response.

The pursuit of sanctions is a severe and rarely used tactic that courts will use to punish a lawyer for bringing a case with no real standing, and while Flores-Williams has rebutted claims that the case is frivolous, there is confusion over what exactly the plaintiffs are asking for in the lawsuit.

“They are not making any claims, this is more of a political statement,” said Mark Squillace, a law professor at the University of Colorado specializing in water law and natural resources. “[Sanctions are] extreme, but I do think it makes some sense in this case. If you are deliberately using the court to try to make a political statement and you don’t have a legal basis for the claim you’re making, the court can come down hard.”

Flores-Williams and the environmental groups aligned with him have made no secret about their intentions to build a movement around their case. Though this lawsuit looks only at the Colorado River ecosystem, its underlying implication is that nature should have rights in the same way people — and often corporations — do under U.S. law.

But the state’s second motion to dismiss argues again that the lawsuit filed by Flores-Williams violates the Eleventh Amendment, which bars private citizens from suing states in federal court. The state also says neither the Colorado River ecosystem or the “next friends” listed in the lawsuit hold legal standing.

“[The amended complaint] asks the court to transfer sovereign authority over the state’s public natural resources and bestow control on a handful of “next friends,” the state’s motion to dismiss said. “The amended complaint, however, is not based in law. Rather, its arguments are based in rhetoric that fails to establish this court’s jurisdiction or to present a valid legal argument to support its claims.”

Protesters carry signs outside the Alfred A. Arraj Courthouse in downtown Denver on Dec. 1, 2017, during a rally supporting a case to give the Colorado River personhood.

Rights of rivers?

The idea of rights of nature dates back to at least 1972, when lawyer Christopher Stone published the article “Should Trees Have Standing?” in Southern California Law Review.

The article caught the eye of Supreme Court Justice William O. Douglas, and that same year he heard the case Sierra Club v. Morton, where the Sierra Club sought to block the construction of a ski resort in California.

The court ruled that because the Sierra Club did not allege a specific injury that the ski resort presented to the club, that it lacked legal standing. But in a dissenting opinion Douglas asserted that nature itself should have standing.

“The ordinary corporation is a ‘person’ for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes,” Douglas wrote. “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”

Legal efforts to establish rights of nature have made some headway in some states, but Colorado courts have continuously struck them down.

“Colorado is maybe the worst of the western states to have this conversation because in some respects we are further behind than everybody,” said Doug Kenney, the director of the Western Water Policy Program at the University of Colorado.

In Colorado, this type of legal thinking is particularly sensitive with water resources due to the state’s complex and deeply entrenched system of water rights.

“It would certainly upturn the whole water rights system and drop a whole foreign concept into how we determine who gets water in the state, which our whole economy is based on,” said Doug Kemper, the executive director of the Colorado Water Congress, a lobbying organization for the water industry. “The constitution is clear that the water belongs to the people and that is what we believe.”

Many legal experts believe the rights-of-nature case has little chance of going forward, but it does come at a pivotal moment for the future of managing the Colorado River.

“The states are all getting along with each other right now and they are making these little incremental changes,” Kenney said. “On one hand it’s a huge success story and on the other hand it’s one of those issues where, do you solve the issue with incremental reforms or do you need some sort of fundamental leap forward? Kind of like this lawsuit.”

Editor’s note:
Aspen Journalism is collaborating with the Glenwood Springs Post Independent, The Aspen Times, the Vail Daily and the Summit Daily News on coverage of rivers and water. The Post Independent published this story on Sunday, Dec. 3, 2017.

Summit County reacts to CDPHE decision to delay action on Climax Molydenum’s standard request

Grays and Torreys, Dillon Reservoir. Photo credit Greg Hobbs.

From The Summit Daily (Deepan Dutta):

Officials from CDPHE and the Environmental Protection Agency decided to move a hearing on the proposal from December 12 to November 2019, citing the need for further study of the proposed limit increase on humans and the environment.

Summit County officials, while welcoming the public health’s delay in making a decision, are standing together against the proposal to allow more molybdenum in Summit’s waterways.

A group of local stakeholders issued a joint statement opposing the increase before Wednesday’s hearing. Representatives from the Town of Frisco, Copper Mountain Consolidated Metropolitan District, Northwest Colorado Council of Governments, and several other local government bodies stated that Climax’s proposal carried “unacceptable levels of uncertainty and risk” to human and animal health.

Lane Wyatt, co-director of the NCCG’s Water Quality/Quantity Committee, has been advising local leaders on the molybdenum issue. Wyatt believes the state is prudent in delaying its decision and welcomes Climax’s attempts to be transparent.

However, Wyatt says the initial research done by independent experts have already shown that high concentrations of molybdenum pose increased risks to human health, and that is enough to consider the molybdenum increase a non-starter.

Additionally, he sees Climax’s effort to get the state’s approval on increased molybdenum levels as a small foothold for its bigger ambitions to export molybdenum to other places, such as the European Union with its stricter environmental standards.

“Climax has been a good neighbor to Summit County,” Wyatt says, “but the community does not want to be a guinea pig for fooling around with how much molybdenum is in the water before it becomes a problem.”

Before the November 2019 hearing, the department of public heath’s water quality commission will hold other limited-scope hearings. One such hearing will take place on January 8 on whether to extend a site-specific temporary modification. The NCCG says it welcomes comments regarding molybdenum, and the public may do so by email at cdphe.wqcc@state.co.us. The commission is requesting all public input by Wednesday, Dec. 27.

@EPA to drop self-bonding requirements for mining clean ups

Bonita Mine acid mine drainage. Photo via the Animas River Stakeholders Group.

From the Associated Press (Matthew Brown) via The Durango Herald:

President Donald Trump’s administration announced Friday that it won’t require mining companies to prove they have the financial wherewithal to clean up their pollution, despite an industry legacy of abandoned mines that have fouled waterways across the U.S.

The move came after mining groups and Western-state Republicans pushed back against a proposal under former President Barack Obama to make companies set aside money for future cleanup costs.

U.S. Environmental Protection Agency Administrator Scott Pruitt said modern mining practices and state and federal rules already in place adequately address the risks from mines that are still operating.

Requiring more from mining companies was unnecessary, Pruitt said, and “would impose an undue burden on this important sector of the American economy and rural America, where most of these jobs are based.”

The U.S. mining industry has a long history of abandoning contaminated sites and leaving taxpayers to foot the bill for cleanups. Thousands of shuttered mines leak contaminated water into rivers, streams and other waterways, including hundreds of cases in which the EPA has intervened, sometimes at huge expense.

The EPA spent $1.1 billion on cleanup work at abandoned hard-rock mining and processing sites across the U.S. from 2010 to 2014.

Since 1980, at least 52 mines and mine processing sites using modern techniques had spills or other releases of pollution, according to documents released by the EPA last year…

The Obama-era rule was issued last December under court order after environmental groups sued the government to enforce a long-ignored provision in the 1980 federal Superfund law…

The proposal applied to hard-rock mining, which includes precious metals, copper, iron, lead and other ores. Coal mines already were required to provide assurances that they’ll pay for cleanups under a 1977 federal law.

Hard-rock mining companies would have faced a combined $7.1 billion financial obligation under the dropped rule, costing them up to $171 million annually to set aside sufficient funds to pay for future cleanups, according to an EPA analysis.