Click the link to read the article on the Sibley’s Rivers website (George Sibley):

Decision-making about the parlous Colorado River situation is currently somewhat hung up in a surly debate about the absolute ‘rule of law’ versus the kind of equity and fairness most laws are created to further. Six of the seven Colorado River states are willing to take proportional shares of the pain for some major cuts in water usage that must happen for the river system to remain functional. But the seventh state, California, insists that the pain be administered strictly according to the foundational law of the river basin, the appropriation law, whereby junior water users bear all the pain before any falls on more senior users.

Thus we Westerners – all Americans actually – are edging ever closer to the time when we will have to confront the continuing viability of laws based on appropriation from the commons, once a commons has been entirely appropriated.

Appropriation law gives individual members of a society permission to convert portions of the land and resources they inhabit in common into private property, through the act of applying their individual labor to the development of that part of the land and its resources. This concept of privatization through individual appropriation from the commons led in America to the fundamental doctrines driving the expansion of Anglo-European civilization into its ‘New World’: the homesteading laws, the laws for appropriating water in water-scarce regions, and the 1872 Mining Law among them. These all came into being down on the ground as common law worked out by settlers and ‘unsettlers’ of European origin – often aggressively and violently – rather than executed as a top-down public policy governing development from the start. The formal laws were only executed after the basic practices of ‘first come first served’ appropriation had been established down on the ground.

There was, of course, a tendency to think of this ‘first come first served’ doctrine as ‘natural law,’ human nature, just the way the species does things. But anthropologists who have studied primary cultures – the remaining hunter-gatherer groups like we all descended from – tell us a different story. For hunter-gatherer bands, the idea that the land and its essential resources could be appropriated by individual members and privatized (No trespassing!) was literally inconceivable. The fruits of the land, the ‘goods and services’ naturally produced from the local ecosystems, were everyone’s for the taking, so long as you only took what you could use. But the land and its production systems themselves belonged to all and none.

They probably intuitively understood the concept of territory – the amount of land their group needed for their subsistence living – and chased off encroaching members of other bands, like wolves peeing on their boundaries. But within the territory, within the band, the idea that an individual member might appropriate for himself, say, the land surrounding the spring where the deer drank, or the big berry patch… simply inconceivable.

So how did we get from there – the aboriginal communal economy in which all equitably got what they needed from the commons without ‘owning’ any of it – to the current situation where most of the former commons (land, water and other resources) has been surveyed off into ‘properties’ privately owned by individuals, with subsequent generations having to work for the propertied class in order to get the wherewithal to buy or trade for what they need of those appropriated resources?

That is a question that has been slowly coming to a boil for the past six or eight thousand years, and the anthropologists, archaeologists and social scientists have not put together a really definitive answer. But there was one period in Anglo-European history when serious, if naive, attempts were made to apply reason to that question; and those attempts in that period, for better or worse, laid the philosophical foundation for the political and economic infrastructure of the American Experiment – including the concept of converting the commons into private property through appropriation.

This period was ‘The Enlightenment’ in the 17^th and 18^th centuries C.E., which followed fast on the heels of the Scientific Revolution in which such luminaries as Francis Bacon and Isaac Newton had put the disciplined, evidence-based search for knowledge on at least an equal footing with the revelations of religion. The Enlightenment philosophes took the scientific quest for evidence-based knowledge into the more ambiguous realm of explaining the social, economic and political infrastructure of society – or maybe more accurately: justifying the infrastructure of their own society, hardly a model of equity and fairness to all.

The philosophes tried, with no anthropological guidance beyond the Bible’s Old Testament stories, to go back to the ‘natural’ origins of human society, where they assumed that the basic social unit was what it had become by their time: the individual. To keep an agglutination of rugged individualists from what the English philosopher Thomas Hobbes had imagined as ‘the war of each against all,’ leading to a ‘solitary, poor, brutish, and short’ life for everyone except the last man standing, the philosophes conceived of the ‘social contract’ whereby each individual agreed to respect the life, liberty and property of every other participant in a ‘contract society,’ if all the others would do the same.

Had the philosophes seriously followed Bacon’s new scientific method, a more objective look at the native populations of the ‘New World’ would have taught them that the original social unit that close to nature was the group, not the individual. Individuals in a native band could become known within their society by their work, but the idea of a making an individual contract with their society was again inconceivable; they were born into their society, grew up taking it for granted; they were their society, and without it they were nothing; they took their identity from their society. It was a significant distinction: in the aboriginal communal society, the individual was nothing without the society; whereas, for the philosophes’ contract society, the society was nothing without the consent and participation of its individuals.

A clear-eyed look at any modern society shows a generally confusing mix of both residual ‘communities’ (evangelical and Catholic churches, fraternal unions, teams, many small villages, and other organizations whose members would willingly die with or for each other), and the dominant ‘contract societies’ (participants in economic exchanges for goods and services, schools, many Protestant churches, most suburbs, and other groups in which the participant remains an individual with a purposeful but limited investment of oneself). A tendency in most of us to develop ‘favorites’ in our economic dealings – going back to the same stores, restaurants, bars et cetera because we like the people there, even though another establishment down the street tries to lure us in with lower prices – suggests that the ‘community’ is a more ‘natural’ and desired state for humans than the ‘contract society’ – which in turn suggests (as Yuval Harari argues in Sapiens) that the road from hunter-gatherer peoples to civilizations is not necessarily an ‘ascent,’ at least in terms of human satisfaction.

Real anthropology, however, was not really the purpose of John Locke, Jean-Jacues Rousseau, Voltaire and the other philosophes;they had the larger mission of justifying a world increasingly driven by individuals operating on their own and hauling the society along with them – the early industrialists and global merchants tugging the decayed, overgrown and overcrowded feudal agricultural societies into the urbanizing mass society reorganized as a contract society, with the contracting workers organized in industrial systems managed by educated elites. Many of the early industrial workers were driven off the land they had farmed for generations as vassals under contracts with the lords of their places, who suddenly found it more profitable to ‘enclose’ their land to graze sheep for wool for the mills springing up in the new more ‘civilized’ economy.

That kind of privatization of land, displacing thousands of people, required some explanation and justification. John Locke attempted this in his ‘Second Treatise on Government,’ subtitled ‘An Essay Concerning the True Original, Extent and End of Civil Government.’ After established the need for the ‘social contract’ in the first chapters, he ventured into a longish chapter titled ‘Of Property,’ where he poses the problem: God having given the earth to ‘the children of men’ in common, how should any one ever come to have a property in any thing?

He goes into a long and somewhat convoluted argument, ‘proving’ to at least his own satisfaction that when a man had added his labor to any thing from the commons given to all, that thing became his property. Apples or nuts he harvested become his – so long as he takes only what he can use; if he takes anything that rots or otherwise wastes away because he was unable to use it, then he has taken property from his neighbors.

That might have gotten a dubious nod from a hunter-gatherer band, or at least a shrug. They’d been doing that forever, although not calling it ‘property’ – whatever fills your basket. But putting the appropriation in the context of individuals getting it for themselves (with an undertone of competition among neighbors) was really quite different from the community context of everyone hunting and gathering for the band’s common pots. Rituals existed around the giving-away of choice meats when the hunts were successful.

Locke then took a giant leap in going from ‘property’ created by just picking up apples and nuts, or dipping a pitcher of water – harvesting the existing fruits of nature – to appropriating property in land. ‘The same measures governed the appropriation of land too: whatsoever he tilled and reaped, laid up and made use of, that was his peculiar right; whatsoever he enclosed, and could feed, and make use of, the cattle and product was also his.’ So long as nothing he grew or raised spoiled before he could use it.

He goes into a long and somewhat convoluted argument, ‘proving’ to at least his own satisfaction that when a man had added his labor to any thing from the commons given to all, that thing became his property. Apples or nuts he harvested become his – so long as he takes only what he can use; if he takes anything that rots or otherwise wastes away because he was unable to use it, then he has taken property from his neighbors.

That might have gotten a dubious nod from a hunter-gatherer band, or at least a shrug. They’d been doing that forever, although not calling it ‘property’ – whatever fills your basket. But putting the appropriation in the context of individuals getting it for themselves (with an undertone of competition among neighbors) was really quite different from the community context of everyone hunting and gathering for the band’s common pots. Rituals existed around the giving-away of choice meats when the hunts were successful.

Locke then took a giant leap in going from ‘property’ created by just picking up apples and nuts, or dipping a pitcher of water – harvesting the existing fruits of nature – to appropriating property in land. ‘The same measures governed the appropriation of land too: whatsoever he tilled and reaped, laid up and made use of, that was his peculiar right; whatsoever he enclosed, and could feed, and make use of, the cattle and product was also his.’ So long as nothing he grew or raised spoiled before he could use it.

The problem thwarting the accumulation of real wealth in property by individuals was spoilage, waste. But what if there were something that didn’t rot or waste away? Like shells, or shiny bits of metal…. One could trade one’s excess apples or nuts for those durable shiny bits of metal, which could then be traded whenever to others for their excessive appropriations that would otherwise rot or waste away…. Thus did money enter the system, and it enabled virtually unlimited appropriation and accumulation of ‘property,’ so long as markets existed for exchanging those shiny bits for more perishable goods and services.

That, in a nutshell, is Locke’s theory of labor in the creation of property, something that anyone could do, rich or poor, so long as he had the energy and will to put his labor to work appropriating the property from the commons – and so long as there was a commons from which to appropriate.

By Locke’s time, of course, the Anglo-European peoples had succeeded so well as a dominant species in their lands that no land or traditional resources were left to appropriate. By the 15^th century C.E. they were approaching a serious energy crisis – wood for burning and hay for horses being their principal energy resources – and were on the cusp of having too many people for the food supply. This precipitated the early stage of reorganizing as a ‘civilization,’ to do what civilizations do: they began to expand, through occupation of new lands where possible, conquest when necessary. Ships of explorers going out with guns, germs and steel – hit a bonanza; they ‘discovered’ America.

Locke acknowledged that the absence of commons remaining in England and Europe was problematic for new generations wanting to create their own property – but there was a whole New World across the ocean! ‘In the beginning all the world was America,’ he observed, and America was apparently huge and perhaps infinite in its resources (still a fairly common belief, or hope)….

The Enlightenment thinkers had a significant influence on the development of American social, political and economic society; the concept of the social contract and the contract society figured largely in both the American break from English governance and in the civil government set up following the American Revolution – which was as much a civil war as it was a war between nations, with early American industrialists fighting for freedom from British mercantilism, and agrarian farmers fighting for freedom from both the British mercantilists and the American industrialists who controlled the flow of those durable shiny bits of metal. Shay’s Rebellion and the Whiskey Rebellion in the years following the end of the revolt against Great Britain might be considered part of the American Revolution.

The American system of appropriating land from the commons tried to merge with the Enlightenment idea of the individual (Jefferson’s ‘yeoman’) as the basic societal unit, and this did not work out all that well. Two out every three homesteads appropriated from the commons failed, and most of the ones that succeeded were done by groups of settlers, often religious groups, settling an area together, especially in the arid West – as Major John Wesley Powell had recommended in his 1877 ‘Report on the Lands of the Arid Region.’

Powell in turn had based his recommendations on the Hispanic-Mexican system of settlement, which permitted no wide-open individual appropriation from the commons; land grants were only issued to groups of settlers committed to working together to develop an area with some ecological sensibility. But Powell’s recommendations were, as usual, ignored. From the perspective of the leaders of industrial society, appropriation from the commons by individuals was preferable to appropriation for community settlements because of the failure rate: homesteaders who failed became a source of workers for western industries, and those managing industrial operations preferred employees who thought of themselves as independent individuals contracting for themselves, as opposed to the ‘socialists’ trying to organize the workers.

While the 17^th century Scientific Revolution and the ensuing Enlightenment gave much to the modern society, it also produced quite a lot of questionable ideas that were clearly the product of cloistered thinkers from favored economic classes who operated from questionable assumptions about what was really ‘human nature’ – and this included America’s ‘founding brothers’ on the west side of the ocean, an equally favored class for the most part. ‘Individualism’ may be an ephemeral luxury that only the wealthier classes in a wealthy society can really afford.

John Locke’s naive ideas about individualistic appropriation from the commons were given – as he acknowledged – new life by the occupation and parceling out of a vast new continental commons (originally appropriated from its aboriginal inhabitants), but now that continent and its waters and other resources are almost entirely appropriated – and the next time the Republicans are in charge they will try to finish off the privatization of the remaining public lands and their resources.

Now we find ourselves facing the question that all unsustainable processes eventually face: what next? A question of some urgency in the Colorado River region, where fairness decrees that Lockean appropriation law can neither be just abandoned nor enforced to the letter of the law. More on this as it unravels further….

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.

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.

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.”

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.

From The Courhouse News Service:

A Denver attorney representing the Colorado River Ecosystem in a bid for “personhood” is facing possible sanctions for refusing to drop the case…

In September this year, Flores-Williams sued Colorado on behalf of the environmental group Deep Green Resistance, asking that the Colorado River ecosystem be granted personhood in the same way a ship, an ecclesiastic corporation or a commercial corporation have it for purposes of constitutional protection and enforcement.

An assistant attorney general warned Flores-Williams in a Nov. 16 letter that if he did not voluntarily request dismissal with prejudice, he could face sanctions under Rule 11 of the Federal Rules of Civil Procedure, for knowingly presenting false or unwarranted claims to the court.

The letter from Colorado’s Senior Assistant Attorney General Scott Steinbrecher said that Flores-Williams’s amended complaint “fails to disclose law contrary to your position that Eleventh Amendment immunity does not apply,” and that it “fails to address the numerous other deficiencies identified in the State’s Motion to Dismiss.”

It adds: “If you choose not to voluntarily withdraw your Amended Complaint with prejudice by close of business November 30, 2017, you are hereby on notice that the defendant will pursue all sanctions and remedies available under Fed R. Civ. P. 11.”

On Tuesday, Flores-Williams released an open letter to the Attorney General’s Office, stating: “The Amended Complaint will not be withdrawn. Legally, it should not be. Morally, it cannot be.”

[…]

Flores-Williams’ 4-page letter chides Steinbrecher for his threat of sanctions.

“The Attorney General’s mandate is to protect and serve the rights of the people of this State, of which the undersigned is an engaged citizen, not to use those vested powers to intimidate and forcibly chill those with whom it does not agree,” Flores-Williams wrote.

In a statement accompanying the open letter, Flores-Williams said: “They didn’t threaten to sanction Exxon attorneys for lying about global warming, nor Bank of America attorneys for fraudulently foreclosing on people’s homes, nor Nestle attorneys for privatizing our water and selling it back to us — but attempt to equal the playing field between corporations and the environment and they try to personally damage you. It’s the playbook.”

From How Stuff Works (Patrick J. Kiger):

A federal lawsuit filed in September against the state of Colorado seeks to have the Colorado River ecosystem recognized as “possessing rights similar to a ‘person,'” including “certain rights to exist, flourish, regenerate and naturally evolve.”

The litigation, filed by Denver attorney Jason Flores-Williams, actually names the river ecosystem as the plaintiff in the suit. Environmental groups Deep Green Resistance (DGR) and the Southwest Coalition and several individual activists also are participating as the role of “next friends” acting on behalf of the river to bring the lawsuit. DGR activist Will Falk explained in a San Diego Free Press article that the lawsuit is an effort to counter a system that “currently defines nature as property.”

Flores-Williams has significant experience representing homeless people in class-action litigation against the city of Denver and city officials. He says that that previous work inspired the river lawsuit. “The only thing more homeless than homeless people is nature,” he says.

Flores-Williams says that after researching legal efforts to protect the environment, he came to the conclusion that even those “heroic” lawsuits hadn’t prevented environmental conditions from worsening. One reason, he says, is that “many environmental cases are dismissed for a lack of standing, because you can’t show what somebody, or a corporation or a state, is doing is of immediate harm to a human being.”

“It’s a real problem, a procedural defect,” says Flores-Williams.

If the river lawsuit is successful, Flores-Williams says that it would enable groups to act on behalf of the river, and make their case by showing that a defendant is damaging the waterway, without the need to prove that humans are being hurt.

The idea of nature having legal rights isn’t a new idea. Back in 1972, Supreme Court Justice William O. Douglas, in his dissenting opinion in the case of Sierra Club v. Morton, argued that environmental issues might be put in better focus if lawsuits could be filed “in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers, and where injury is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”

Douglas cited legal scholar Christopher D. Stone, whose book “Should Trees Have Standing?” made the case that natural objects could have legal rights, which would be exercised with the assistance of appointed guardians.

Since then, an international movement has sprouted to confer legal rights on nature, and recently, several countries have afforded such status to rivers. In March 2017, for example, after long negotiations with indigenous people, the New Zealand Parliament passed legislation that declared the Whangagui (Te Awa Tupua) River to be “a legal person” with all of the rights, powers, duties and liabilities that any other New Zealand resident might have.

Shortly after the New Zealand decision, a court in the northern Indian state of Uttarakhand ruled that the Ganges River and its main tributary, the Yamuna River, also deserved the same legal status as human beings.

Even so, the Colorado River lawsuit may face a difficult legal road. Reed Benson, chairman of the environmental law program at the University of New Mexico, told the New York Times that he considered it “a long shot in more ways than one.”

But Flores-Williams doesn’t seem deterred by the challenge, or by worries that some might take a dim view of a river being granted rights similar to those of a human being, or of a corporation.

“I wish people would get hung up on the idea that our environment is being diminished,” he says. “The river should have a right to exist.” Additionally, he says, “anyone knows that if the Colorado River is extinguished, it would cause an injury to us all.”

The office of Colorado Gov. John Hickenlooper declined to comment on the suit itself, but, via email, spokesperson Jacque Montgomery defended the state’s efforts to protect the river.

“Colorado and countless partners have long understood the significance of the Colorado River system and the need to balance our needs for water with conservation and enhancement of the river ecosystem,” she wrote. “This extends from efforts to protect — and improve habitat for — endangered fish in the river over the course of decades to the recent development of Colorado’s Water Plan. That plan’s very essence is about working together to ensure sufficient water supplies for agriculture, cities, recreation and the environment as our state continues to grow. The Colorado River, and its protection, has been a fundamental focus of Colorado as a state, but also of local governments and water utilities who themselves depend upon the river’s health and function as necessary for their own success.”

Flores-Williams says that activists in other states have expressed interest in filing similar suits

From the Colorado River District:

Colorado River Ecosystem/Deep Green Resistance v. the State of Colorado, Case No. 17-cv-02316, U.S. District Court, Colorado.

Information only.

Board members may have read recent news reports about a novel lawsuit that seeks to declare the Colorado River ecosystem as a “person” with standing to bring a lawsuit on its own behalf. The lawsuit was filed by the environmental group, Deep Green Resistance, as a “next friend”1 of the Colorado River Ecosystem. The complaint seeks a declaration from the court that the Colorado River Ecosystem is a “person” with standing to sue in court to protect its right to “exist, flourish, regenerate, be restored, and naturally evolve.” Additionally, the complaint alleges 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. As noted in the complaint, Ecuador has amended its constitution to recognize the rights of ecosystems. Likewise, jurisdictions in Columbia and India have found rivers to have certain rights that warrant protection.

If successful, the lawsuit would be precedential not only in Colorado but throughout the country. Thus, we expect the State of Colorado will receive lots of help from others in opposing the lawsuit (we have already offered the River District’s help). A ruling granting the requested relief could totally upend environmental litigation. 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. 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. The Attorney General’s Office will be taking the lead on Colorado’s behalf. We will continue to be in contact with the AG’s office as it prepares Colorado’s defense of the lawsuit – hopefully with a swift and successful motion to dismiss.

From The Las Vegas Sun (April Corbin):

Frustrated by what they perceive as a failure of existing environmental law, advocates are exploring a new strategy to protect natural resources: asking federal district court to recognize the Colorado River as a person.

Yes, a person — with inalienable rights to “exist, flourish, regenerate, and restoration.”

The Colorado River is seeking the judicial recognition of “legal personhood” in a lawsuit filed Sept. 25 against the governor of Colorado in federal court (the first hearing is scheduled for Nov. 14). A favorable ruling would not only affect Nevada and the six other states with direct ties to the 1,450-mile-long river; it would spark a significant shift in environmental preservation nationwide.

The Community Environmental Legal Defense Fund, a nonprofit public-interest law firm and a leader in the push for “rights of nature,” is adviser on the lawsuit. Executive Director Thomas Linzey says existing environmental laws focus on damage to people and their property.

“Climate change is presenting itself in full force,” Linzey says. “People are beginning to understand that environmental law is falling short. Something new is needed. … This emerging system is about recognizing that ecosystems need to be protected in the plenary sense — not just to benefit humans.”

Individuals from the nonprofit organization Deep Green Resistance have been designated as “next friends” who act as surrogates on behalf of the river. The concept is similar to guardianship in cases involving minors or people considered too mentally incompetent to vocalize their own interests.