Supporters seeking rights for Colorado River meet in Denver, amend complaint

The Colorado River in Cataract Canyon.

By Lindsay Fendt, Aspen Journalism

DENVER — Beneath the dim red glow of string lights at the Mercury Cafe in downtown Denver, about 25 people gathered Tuesday afternoon to rally support for a lawsuit against the state on behalf of the Colorado River.

The case, the first of its kind in the United States, has the potential to shift American environmental law by granting nature a legal standing. The suit lists “the Colorado River Ecosystem” as the plaintiff along with people who hope to serve as “next friends” for the river and represent its interests in court.

Five potential next friends were named in the original complaint — Deanna Meyer, Jennifer Murnan, Fred Gibson, Susan Hyatt and Will Falk — all members of the environmental group Deep Green Resistance, which states its goal is to “deprive the rich of their ability to steal from the poor and the powerful of their ability to destroy the planet.”

In an amended complaint, filed on Nov. 6, two more “next friends” were added to the case.

Owen Lammers of Moab is the executive director of Living Rivers, “which empowers a movement to realize social-ecological balance within the Colorado River watershed,” the amended complaint states. Living Rivers is a member of the Waterkeeper Alliance, a New York-based nonprofit dedicated to clean water founded by Robert F. Kennedy Jr.

“Because of Mr. Lammar’s significant relationship with, and dedication to, the Colorado River ecosystem, he is qualified to serve as next friend,” the amended complaint states.

This is a change from the original complaint, which did not cite any particular relationship between the Colorado River and the members of Deep Green Resistance.

Also added to the case was John Weisheit, who is “the person designated as the on-the-water ‘keeper’ per the Waterkeeper Alliance policies. In other words, Mr. Weissheit is the ‘Colorado Riverkeeper,'” the amended complaint states.

Wiessheit, 63, “has enjoyed the Colorado River and its tributaries since childhood,” the complaint says. A resident of Moab, he’s been a river guide since 1980 and “continues to lead river trips that support scientific research and public education, in fulfillment of Colorado Riverkeeper’s mission statement.”

Wiesheit is also a co-author of the 2004 book “Cataract Canyon, a human and environmental history of the rivers in Canyonlands,” which is a detailed 268-page guide to the “center of the universe.”

Jason Flores-Williams, the lawyer representing members of Deep Green Resistance in Colorado River Ecosystem v State of Colorado, speaks at a rights-for-nature meeting at the Mercury Cafe in Denver on 11.14.17. The state has moved to dismiss the lawsuit, and is expected to do so again in response to a recently amended complaint filed by Flores-Williams.

Signs of protest

Though the novel case is seeking personhood for the Colorado River ecosystem, the suit’s proponents hope to use it as a launching pad for a broader rights-of-nature movement.

“For you or I to defend a river in court right now we have to show how injury to the river injured us.” said Mari Margill, the associate director for the Pennsylvania-based Community Environmental Legal Defense Fund, a rights-for-nature legal group and a legal adviser on the Colorado River case. There is a growing understanding that our environmental laws are starting in the wrong place.”

Rather than maneuvering within existing environmental law, where nature is considered property, rights-of-nature lawsuits seek to give the natural world rights to exist beyond its use to humanity.

Margill and other rights of nature proponents say that our current environmental legal framework — which is based on legislation like the Clean Air and Clean Water Acts — does not go far enough. They point to past court decisions that have granted legal rights to corporations, like the 2010 Citizens United case, and say nature should have that same standing.

“I’ve long acknowledged that what we are doing in the environmental movement has not created change,” Meyer, one of the potential next friends in the lawsuit, said in a recent interview. “We see every biotic system on the planet in decline and nothing has gotten better. Until the river has rights, I don’t see any change happening in the way it is being used and exploited.”

At the meeting in the café in Denver on Tuesday, activists supporting the lawsuit propped up poster boards that said “The Colorado River runs through us” and “Legal standing for the Colorado River,” that were made for a courthouse rally held earlier that morning. They kicked off their meeting with a slow chant praising “sacred Colorado waters” before sitting down to strategize about building support around the lawsuit.

The group is planning protests, awareness campaigns and other rights-of-nature lawsuits in an effort to open up the courts for cases defending ecosystems from environmental ills.

“The court isn’t going to just give us anything,” Jason Flores-Williams, the Denver-based lawyer representing Deep Green Resistance the potential next friends in the lawsuit, said at the meeting. “How we won’t lose is not based on whatever will happen inside the courtroom, but what happens outside of it.”

So far, the case has moved forward only a couple of short steps. Flores-Williams filed the case on Sept. 25, which the state followed with a motion to dismiss on Oct. 17 on the grounds that the case does not fall under federal jurisdiction and lacked specific injuries attributable to the state.

“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,” reads the motion to dismiss, which was filed by the Colorado attorney general’s office.

The plaintiffs were then allowed to amend their complaint, and on Nov. 6 Flores-Williams filed a new complaint, invoking rights under the U.S. Constitution in order to keep the case in federal court.

The map of the Colorado River basin included in the amended complaint filed on behalf of the Colorado River ecosystem by members of Deep Green Resistance and other 'next friends.' The map understates the contribution of the Green River to the Colorado River system.

246,000 square miles

Flores-Williams used the opportunity clarify aspects of the original complaint. For example he added that the Colorado River has the right to “be restored” in addition to the right “to exist, flourish, regenerate (and) naturally evolve.”

He also defined the scope of the plaintiff in the case, the “Colorado River Ecosystem,” saying it “encompasses the area bound by the highpoints and ridgelines where drop-by-drop and grain-by-grain, water, sediment, and dissolved materials ebb their way toward the Gulf of California: some 246,000 square miles (640,000 km2) in southwest North America including portions of Colorado, New Mexico, Wyoming, Utah, Nevada, Arizona, California in the United States, and portions of Baja California and Sonora in Mexico.”

The amended complaint states that the Colorado River ecosystem includes the river’s “major tributaries” and “all the creeks, streams, and tributaries that feed them, along with the surrounding landscape where water percolates and flows underground,” and it includes a map of the entire Colorado River basin.

It also cites the native endangered fish species that are struggling to survive in the Colorado River basin and says the Endangered Species Act “has failed to reverse the pace of biodiversity degradation.”

In terms of the connection between the river ecosystem and those who wish to be seen as “next friends” by the court, the amended complaint claims that “as the human part of the Colorado River ecosystem, next friends and guardians are capable of speaking through words on behalf of the natural communities that comprise the Colorado River ecosystem.”

The amended complaint also elaborates on the idea of personhood for the river, noting “the recognition of the Colorado River ecosystem as a ‘person’ is far less of a stretch than bestowing upon inanimate corporations the status of personhood.'”

And the amended complaint argues that by lack of such recognition the river’s rights are being denied under the due process and equal protection provisions in the U.S. Constitution.

On thing the amended complaint did not do is correct claims in the original complaint that the state of Colorado operates a number of dams and reservoirs on the Colorado River system that are, in fact, operated by the Bureau of Reclamation or other water-management organizations, including Blue Mesa Reservoir on the Gunnison and Green Mountain Reservoir on the Blue River, both tributaries of the Colorado River.

Will Falk,a member of Deep Green Resistance, speaking at the Mercury Cafe in Denver on 11.14.17. Falk is one of the named plaintiffs in Colorado River Ecosystem v State of Colorado, and has recently been traveling along portions of the Colorado River.

Beyond the law

The courthouse rally and the following rights-of-nature meeting were originally scheduled around a status conference slated for Tuesday, but the court vacated the hearing and gave the state until Dec. 1 to respond to the amended complaint. Flores-Williams expects the state will again move to dismiss the case.

Regardless of the outcome of the lawsuit, the case’s plaintiffs plan to keep fighting against what they see as exploitation on the Colorado River and hope to inspire other to file rights of nature cases.

“Our case by itself is not going to transform the American legal system,” Falk, a potential “next friend” in the case said in an interview. “People who care about the environment need to realize that one court case is not going to be a quick fix for a system that has a tradition of exploiting the natural world.”

The amended complaint notes that Falk “recently traveled the waters of the Colorado River.”

“To support the idea that the Colorado River needs rights, I wanted to go see first hand the problems along the river,” Falk said in a recent interview.

Grand River Ditch July 2016. Photo credit Greg Hobbs.

“It started a couple weeks ago when we went up to La Poudre pass north of Rocky Mountain National Park to see the headwaters of the river,” Falk said. “And you don’t really find a whole lot of natural or wild water. What you find is the Grand Ditch, which is a ditch build in the 1880s that is still carrying water across the Continental Divide and over the Rocky Mountains and to the Front Range. From the very beginning, the river is being exploited. The water is taken from her birthing grounds. From the moments she begins to flow she is being stolen.”

Editor’s note: Aspen Journalism is covering rivers and waters in collaboration with the Glenwood Post Independent, The Aspen Times, the Vail Daily and the Summit Daily News. The Post Independent published a shorter version of the story on Sunday, Nov. 19, 2017.

#ColoradoRiver: Should Nature Have the Right to Sue in Court? — Patrick J. Kiger #COriver

The Colorado River, not far below the Utah-Colorado state line, and flowing toward the lower basin.

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.