A network of streams, lakes and marshes in Florida is suing a developer and the state to try to stop a housing development from destroying them.
The novel lawsuit was filed on Monday in Orange county on behalf of the waterways under a “rights of nature” law passed in November. It is the largest US municipality to adopt such a law to date.
The listed plaintiffs are Wilde Cypress Branch, Boggy Branch, Crosby Island Marsh, Lake Hart and Lake Mary Jane.
Laws protecting the rights of nature are growing throughout the world, from Ecuador to Uganda, and have been upheld in courts in India, Colombia and Bangladesh. But this is the first time anyone has tried to enforce them in the US.
The Orange county law secures the rights of its waterways to exist, to flow, to be protected against pollution and to maintain a healthy ecosystem. It also recognizes the authority of citizens to file enforcement actions on their behalf.
The suit, filed in the ninth judicial circuit court of Florida, claims a proposed 1,900-acre housing development by Beachline South Residential LLC would destroy more than 63 acres of wetlands and 33 acres of streams by filling and polluting them, as well as 18 acres of wetlands where stormwater detention ponds are being built.
In addition to seeking to protect the waterways’ intrinsic rights, the suit claims the development would disrupt the area’s hydrology and violate the human right to clean water because of pollution runoff from new roads and buildings.
Chuck O’Neal, president of campaign group Speak Up Wekiva who will be representing the wetlands in court, told the Guardian he looks forward to giving them a voice. “Our waterways and the wildlife they support have been systematically destroyed by poorly planned suburban sprawl. They have suffered in silence and without representation, until now.”
The housing development, known as the “Meridian Parks Remainder Project”, needs a development permit from the city of Orlando and a dredge-and-fill permit from the Florida department of environmental protection to proceed. The suit seeks to block these from being issued.
O’Neal said he hopes the court “reaches beyond current conventional thinking” in considering the case. “This is how the evolution of rights has occurred in western law since the signing of the Magna Carta through the abolition of slavery, through women’s suffrage and through court decisions such as Brown vs the Board of Education and most recently the acceptance of marriage equality.”
Thomas Linzey, senior legal counsel at the Center for Democratic and Environmental Rights who helped secure Orange county’s rights of nature law last year, said: “Given the rampant development that’s occurred in Florida over the past 30 years, and the power struggle between the state government and local government over these issues, there are multiple grounds for a court to hold that the development cannot proceed as proposed.”
A famous whitewater river in northern Quebec is the first place in Canada to be declared a person, legally speaking, under a new environmental strategy that’s taken off in some other countries.
The Magpie River in Quebec’s Cote-Nord was given legal personhood through twin resolutions by the local Innu council and by the local municipality of Minganie.
That united front, along with the river’s fame, makes it a “perfect test case” in Canada for the idea, according to a Montreal organization specializing in this legal tactic.
As a legal person, the river has nine distinct rights and the possibility of having legal guardians, said the groups in a joint press release…
The idea of treating parts of nature—places or animals—as persons under the law has become increasingly popular in some places, particularly in New Zealand, where Maori groups and that country’s federal government have together created the new status.
In one example, in 2017, New Zealand’s parliament passed legislation declaring the Whanganui River a legal person in the first-ever such case in the world.
It recognized the river, which is almost exactly the same length as the Magpie, as an indivisible, living being and conferred upon it the same rights and responsibilities as a human being.
The act also ended a long-running claims process between the government and Maori.
“It’s a shift of paradigm,” Yenny Vega Cardenas, one of the project’s leaders, told CTV News.
Cardenas is the president of the International Observatory on the Rights of Nature (IORN), which is based in Montreal and drafted the legal resolutions along with the rest of the group.
The idea isn’t just granting rights or protecting the river for future generations, she said, but “recognizing that… we are not the masters of the universe, over nature,” but that the relationship between humans and their environment is far more complicated and intertwined, she said.
The other countries where the strategy has been most used, other than New Zealand, are Ecuador and the U.S., she said.
The U.S. is also the one place where a high-profile effort recently failed: the town of Toledo passed a resolution declaring Lake Erie a person, in order to help them create stronger protections for the lake after toxic algae made the water undrinkable for a period in 2014.
A federal court struck down that resolution last year, saying it was too broad.
The river, almost 300 kilometres long, is famous for a series of rapids that have made it an international destination for whitewater enthusiasts—National Geographic ranked it among the world’s top 10 whitewater rivers.
But that same energy has also put it on the radar of Hydro-Quebec, the province’s state-owned energy corporation that has harnessed huge swaths of northern Quebec and its powerful rivers for hydroelectricity.
There is already one generating station on the Magpie, opened in 2007 by Hydro-Quebec and then sold in 2013 to smaller renewable energy company Innergex, which now owns it in partnership with the Minganie municipality.
However, Hydro-Quebec has shown interest in the river since then, including the river in its strategic plan about a decade ago and sparking a long battle over the idea of new dams on the river. Hydro-Quebec plans abandoned those plans in 2017, saying it didn’t need the extra energy.
In their press release, the groups involved said that their recent move is new way of trying to secure long-term protection for the river, given its appeal for energy producers.
The need to protect the river “has received regional consensus,” the groups wrote, “but the plan to declare the river a protected area has been thwarted for years by state-owned Hydro-Québec, due to the waterway’s hydroelectric potential.”
Hydro-Quebec told CTV that they have indeed “identified it as a river with potential,” and they would like to keep options open to be able to use it for hydropower, but there’s no simmering conflict over it right now.
“We understand that these people made a clear statement about their intention to protect this river,” said Hydro-Quebec spokesman Francis Labbé…
The leader of another Quebec environmental group said the personhood move comes after foot-dragging by the province.
It’s “a way for us to take matters into our own hands and stop waiting for the Quebec government to protect this unique river,” said Alain Branchaud, director of the Quebec chapter of the Canadian Parks and Wilderness Society.
Ecuador’s Los Cedros Reserve, one of Earth’s most biodiverse habitats, could be wiped out by mining. A court case could save it — and set a precedent for the planet.
Should nature have rights? That question is being put to the test right now in Ecuador.
In 2008 the South American country made history when its new constitution declared that nature had “the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” It was an unprecedented commitment, the first of its kind, to preserving biodiversity for future generations of Ecuadorians.
The constitutional change did not automatically protect nature, but it gave citizens what the Global Alliance for the Rights of Nature describes as “the legal authority to enforce these rights on behalf of ecosystems. The ecosystem itself can be named as the defendant.”
The country could soon make history again when its Constitutional Court hears a case that seeks to apply these rights of nature to a protected forest, known as Bosque Protector Reserva Los Cedros, against large-scale copper and gold mining.
The threat stems from a 2017 change in government policy that allowed mining concessions on 6 million acres of lands, including at least 68% of Los Cedros — part of a hasty attempt to boost the mining sector and compensate for declining oil revenues. Experts say that policy appears to be unconstitutional, which has led to the present showdown.
“Mining in protected forests is a violation of Articles 57, 71 and 398 of the constitution: the collective rights of Indigenous peoples, the Rights of Nature, and the right of communities to prior consultation before environmental changes, respectively,” says ecologist Bitty Roy of the University of Oregon, who has conducted research at Los Cedros since 2008.
A Vital Reserve
Los Cedros is a remote, pristine, 17,000-acre cloud forest in northwest Ecuador and one of the most biodiverse places on the planet.
Conservation biologist Mika Peck, of the University of Sussex, describes Los Cedros as “a biodiversity hotspot within a hotspot — and of global importance in terms of conserving our natural history.”
He adds, “the reserve and all it maintains is priceless.”
The reserve has been protected since 1988 due primarily to the work of manager Josef DeCoux and Australia’s Rainforest Information Center.
DeCoux tells me he was one of the “hippies” who moved from the United States to Ecuador in the 1980s to help “save the rainforest.”
He chose well. Not only does Los Cedros protect at least 250 species from extinction, it safeguards four watersheds. That means the court case is not just about preserving a biodiversity jewel; it’s about guaranteeing a livable environment to local people as well as protecting the forest’s own right to remain undisturbed.
A recent letter from 23 international scientists, including Roy and Peck, argued that “the value of this intact watershed is far greater than that of any possible mineral wealth that lies beneath it.”
The remoteness of the reserve was one of the things that pulled me to it a few years ago.
Inaccessible by road, the final ascent up to Los Cedros is a nerve-wracking, two-hour mule ride on a muddy track with sheer drop-offs and awe-inspiring views. Once there you’re immersed in a biological paradise. You can walk among the shaggy, epiphyte-laden trees dripping from the frequent rain showers brought by the low-creeping clouds; listen to the cacophony of some of the 358 bird species that greet the dawn; seek out the six species of cats, including pumas and endangered jaguars; get to know some of the 970 species of moths; or look for 186 species of orchids, one-third of which are endangered. They include several species of Dracula orchids, named for their blood-red petals and haunting faces.
Each day I explored the reserve’s trails — kept short to minimize disturbance to the ecosystem — its uniqueness became more evident. Nearly two dozen species of frogs, almost all endangered — including a species of rainfrog able to change its skin texture and a glass frog known for its transparent abdomen — occupy streams so clean you can drink directly from them. During my visit DeCoux told me he was particularly proud of that pristine resource.
The reserve is also home to the endangered spectacled Andean bear and three species of monkeys, also endangered.
On a morning hike with one of the guides employed by the reserve, I saw a troop of one of those species, the critically endangered brown-headed spider monkey, one of the rarest primates in the world, with a population of about 250 individuals. As most of the troop moved on, one monkey hung back to grab and eat some fruit. Although we watched from 30 yards away, it soon started hooting at us and shaking a branch to scare us off.
A clear message that we’d encroached on its personal space.
The Mining Threat Looms
Yet in an encroachment of national and potentially devastating proportions, in 2017 the government put more than two-thirds of Los Cedros under a mining concession to the Canadian mining company Cornerstone Capital Resources, in conjunction with ENAMI, the state’s mining company.
More than seven million acres across Ecuador are now under concessions. Additional concessions cover major portions of Indigenous territory, which threatens not only the people’s livelihoods but their lives. The permits, the majority of which are in the highly biodiverse Andean cloud forests, were issued without consulting the affected communities.
A year ago DeCoux’s legal team succeeded in getting a provincial court to revoke Cornerstone’s mining permit because of the lack of consultation. But that hasn’t stopped the company from continuing to operate, according to Elisa Levy of the mining oversight collective OMASNE (Observatorio Minero, Ambiental y Social del Norte del Ecuador).
“They have built roads to the edge of the reserve,” she says, “and broken new trails in Los Cedros” — actions that compromise the integrity of the presently intact ecosystem.
ENAMI appealed the provincial court’s decision, and in May the Constitutional Court decided to hear the case under rights of nature, probably by the end of the year.
The latest development was “very good news indeed,” DeCoux wrote in a blog post. Without rights people perceive forests, rivers and oceans as objects to be used; but with rights they become subjects to be valued on their own terms.
The case matters not just for Los Cedros — it could set precedent for the entire country.
Two of the Constitutional Court judges, Ramiro Avila and Daniela Salazar Marin, issued a written statement on May 18 that acknowledges the biodiversity of Los Cedros and explicitly mentions that it is the home of the critically endangered brown-headed spider monkey and the endangered spectacled Andean bear. They further argue that the case will allow the court to rule on the “content” of the rights of nature, and to “develop parameters to set the limits of protected forests and the scope of responsibility for the state to monitor and follow up on mining concessions.” (Translated from Spanish.)
The Call to Protect
Habitat loss, now exacerbated by climate change, is the leading cause of extinction around the world. With the high number of endemic species in Los Cedros, and their small range, allowing mining exploration to continue will undoubtedly result in extinctions. In a research paper published in 2018 in the journal Tropical Conservation Science, Roy and others argue that permanently protecting Los Cedros, the last uncut forest in western Ecuador, is necessary to ensure lower-altitude flora and fauna can migrate freely to the higher altitudes found to the north, where Los Cedros borders the enormous 450,000-acre Cotacachi-Cayapas Ecological Reserve.
Peck echoes that conclusion. “The move to rule in favor of Bosques Protectores such as Los Cedros is vital to ensure protection of vital natural habitats, and the species they maintain, in a world that is going to undergo major climatic shifts,” he says. “Natural habitat is key to maintaining ecosystem services that buffer these changes and allow species to migrate and survive.”
Those species remain ever-present in my mind.
The sound I most remember from Los Cedros is the eerie call of the pastures frog: a high, slow electronic bleating that reverberated back and forth over the ridge — as if to warn that all this could be lost. Reserves like Los Cedros make up one-third of the protected lands in Ecuador, so a ruling in favor of rights of nature here would be a bold move that would protect other forests from mining and ultimately allow the establishment of new conservation corridors.
If ever there was a time for bold moves that will surely make history, it is now.
Peck calls a ruling in favor of the Bosques Protectores “the only rational response in the face of climate change and biodiversity loss.”
Levy is encouraged that the case will be heard under rights of nature, but remains cautious. “We don’t want to be too optimistic,” she says. “We know what’s at stake.”
For more on Los Cedros and the threat of mining in Ecuador, watch this video from the Rainforest Action Group:
Water is essential to life. Yet in the eyes of the law, it remains largely unprotected — leaving many communities without access to safe drinking water, says legal scholar Kelsey Leonard. In this powerful talk, she shows why granting lakes and rivers legal “personhood” — giving them the same legal rights as humans — is the first step to protecting our bodies of water and fundamentally transforming how we value this vital resource.
Advocates are looking for new ways to combat this problem. On February 26, 2019, Toledo citizens passed the Lake Erie Bill of Rights, which gives the lake the right to “exist, flourish, and naturally evolve” and awards citizens the right to a “clean and healthy environment.” They join a growing movement – referred to as “Rights of Nature” – providing legal personhood to natural entities.
In theory, this action could make it possible to hold corporations and governments liable for polluting the lake. But while the concept is finding support abroad, it faces hurdles in the U.S. The Lake Erie law was immediately challenged in court by an Ohio farm and has yet to take effect.
My work focuses on international and comparative law related to environmental justice and human rights. I recently spent time in New Zealand researching the impacts of a 2017 law giving the Whanganui River its own legal identity. What I saw there convinced me that providing legal standing to a natural entity is a viable method of environmental protection. In my view, however, the processes that advocates use to enact Rights of Nature law critically influence whether these efforts will succeed.
A new conservation strategy
Rights of Nature laws generally are designed to improve environmental protection and encourage people to rethink their relationship to the environment. Instead of viewing nature as a commodity that exists for humans to use, and abuse, these statutes consider nature as important for its own sake.
Measures awarding legal status to nature have been adopted in Ecuador, Bolivia, Colombia, New Zealand and Bangladesh, and by several Native American nations, including the Ho Chunk and White Earth. Other efforts are underway across the country, including in Oklahoma and Oregon.
The Lake Erie Bill of Rights is the latest phase of citizen-led efforts to address chronic nutrient pollution and the resulting dangerous algae blooms. In 2018 Toledoans for Safe Water collected enough signatures for the Lake Erie Bill of Rights to appear on the ballot.
How effective are Rights of Nature laws elsewhere? One of the most detailed examples is the 2017 Whanganui River Settlement Agreement, which resulted from years of negotiations between the Maori and New Zealand’s government. Known by its Maori name, Te Awa Tupua, it recognizes legal personhood for the Whanganui, the country’s third-longest river.
The Whanganui has been an important source of food and transportation for centuries, and has great spiritual importance for the Maori, who view it as a living being. Te Awa Tupua recognizes that the river possesses all the “rights, powers, duties, and liabilities of a legal person.” The Whanganui is represented by two Guardians, known as Te Pou Tupua, who are jointly appointed by the national government and local Maori.
Under the law, any activity that might affect the river must go through a consultation process and receive approval from Te Pou Tupua. One early test occurred in March 2019, when construction of a new bike bridge over the river was halted so that the required consultations could take place. Bigger issues will arise in the future, particularly in regards to renewal of concessions for energy companies diverting portions of the river for power generation.
(The local Maori tribe of Whanganui fought for recognition of their river as an ancestor for 140 years.)
Lake Erie and the law
Unlike Te Awa Tupua, the Lake Erie law does not include much detail regarding its requirements or specific mechanisms to guide implementation. Ultimately courts may strike the measure down based on these omissions and potential conflicts with state and federal regulations.
Lake Erie is governed by treaty law between the U.S. and Canada, so the Drewes Farm lawsuit asserts that the Bill of Rights infringes upon U.S. government authority. Similarly, because the lake touches four U.S. states, the lawsuit argues that any new law related to Lake Erie should be adopted by states, not individual cities.
Drewes Farm also claims that the Bill of Rights violates its 14th Amendment rights to equal protection, since the law mentions only corporations and governments, and conflicts with Fifth Amendment prohibitions on law that is too vague.
But I believe that it is still worth trying, and that passage of the Lake Erie Bill of Rights is significant, even if it is ultimately struck down. Widespread coverage of the issue has already increased awareness of the idea of legal personhood for nature in the U.S.
I see learning from the negotiation and implementation of more developed Rights of Nature laws like Te Awa Tupua as the next step. As measures like this become more common, a new view of our relationship to nature may develop. I expect that recognizing the legal standing of natural entities will become a significant legal tool in the fight for better environmental protections, including addressing toxic algae blooms in Lake Erie.
In July 2019, a severe bloom of blue-green algae began spreading across the western half of Lake Erie. The dominant organism—a Microcystis cyanobacteria—produces the toxin microcystin, which can cause liver damage, numbness, dizziness, and vomiting. On July 29, the National Oceanic Atmospheric Administration (NOAA) reported unsafe toxin concentrations in Lake Erie and have since advised people (and their pets) to stay away from areas where scum is forming on the water surface.
This image shows the bloom on July 30, 2019, as observed by the Operational Land Imager on the Landsat 8 satellite. Green patches show where the bloom was most dense and where toxicity levels were unsafe for recreational activities. Around the time of this image, the bloom covered about 300 square miles of Lake Erie’s surface, according to news reports; by August 13, the algae had spread across 620 square miles.
While blooms in Lake Erie are a regular occurrence in the summer, NOAA researchers forecasted that 2019 could bring some of the most abundant blooms in recent years.
Bloom conditions this year were influenced by calm winds and rainfall. Calm winds in July allowed algal toxins to accumulate at the surface (instead of being dispersed). Strong winds in August have since mixed some surface algae to deeper depths. Heavy rains carry excess nutrients (often fertilizer) from farms into the lake. However, such nutrient runoff may have been less than anticipated this year because heavy spring rains and flooding prevented many farmers from planting crops.
NOAA researchers will continue to monitor the bloom, producing weekly bulletins of the location and concentration of algae growth and predictions about where it is headed. The team integrates several data sets, including NASA’s MODIS-derived cyanobacteria index, NOAA water temperature measurements, and wind conditions. NOAA will also collect and process water samples with an unmanned underwater vehicle.
The public can stay informed about harmful algal blooms using a new mobile app that sends alerts when harmful algal bloom may be forming. The app relies on satellite observations of changes in the color of the water.
This summer, the Yurok Tribe declared rights of personhood for the Klamath River — likely the first to do so for a river in North America. A concept previously restricted to humans (and corporations), “rights of personhood” means, most simply, that an individual or entity has rights, and they’re now being extended to nonhumans. The Yurok’s resolution, passed by the tribal council in May, comes during another difficult season for the Klamath; over the past few years, low water flows have caused high rates of disease in salmon, and cancelled fishing seasons.
With the declaration, the Yurok Tribe joins other Indigenous communities in a growing Rights of Nature movement aimed at protecting the environment. Last year, the White Earth Band of Ojibwe adopted the Rights of Manoomin to protect wild rice — manoomin — and the freshwater sources it needs to survive in Minnesota. And in 2017, the New Zealand government adopted the Rights of the Whanganui River, stemming from a treaty process with Māori iwis, or tribes, that gives the river its own legal standing in court. “By granting the rights of personhood to the Klamath River, not only does it create laws and legal advocacy routes, but it’s also an expression of Yurok values,” says Geneva Thompson, associate general counsel for the tribe and citizen of the Cherokee Nation, who worked on the resolution. “The idea is that the laws of a nation are an expression of the nation’s values.”
The Yurok resolution draws inspiration from the Rights of Manoomin, as well as the United Nations Declaration on the Rights of Indigenous People, which enshrines the right of Indigenous people to conserve and protect their lands and resources. Legal personhood provides a different framework for dealing with problems like pollution, drought and climate change, though no case has yet been brought to put the Whanganui, Manoomin or Klamath rights to the test in court. The crucial aspect to establishing these legal frameworks, Indigenous lawyers say, involves shifting relationships and codifying Indigenous knowledge — in other words, recognizing non-human entities not as resources, but as rights-holders.
“From New Zealand to Colombia, the powerful idea that nature has rights is taking root in legal systems,” says David Boyd, U.N. special rapporteur on human rights and the environment, of the Yurok Tribe’s resolution. “We must no longer view the natural world as a mere warehouse of commodities for humans to exploit, but rather a remarkable community to which we belong and to whom we owe responsibilities.”
In essence, the Yurok resolution means that if the river is harmed, a case can be made in Yurok tribal court to remedy the problem. Currently, says Yurok Tribe General Counsel Amy Cordalis, laws like the Clean Water or Endangered Species acts can be used to protect rivers by addressing symptoms of problems like diseased fish or pollution. But the Yurok resolution seeks to address the river’s problems directly and holistically, including the impacts of climate change. “You’re working towards making the river whole again,” Cordalis says.
In December 2018, the White Earth Band of Ojibwe and the 1855 Treaty Authority, an organization that upholds treaty rights for Chippewa bands, established legal personhood for wild rice. The resolution draws from the Rights of Nature — an international concept that argues that nature should have the same rights as humans — and is the first law to recognize legal rights of plant species. The rights spell out that within White Earth and other Chippewa ceded territories, wild rice has “inherent rights to restoration, recovery and preservation,” including “the right to pure water and freshwater habitat,” the right to a healthy climate and “a natural environment free from human cause global warming.” Frank Bibeau, executive director of the 1855 Treaty Authority and a White Earth tribal member, says the rights are an extension of Ojibwe treaty rights both on and off the reservation. And they may soon be put to the test — the proposed crude oil Enbridge Line 3 pipeline, which requires state approval, would cross into off-reservation areas where manoomin and freshwater sources are.
The resolutions give tribal nations new legal strategies for use in court, especially in regards to climate change: “The idea of having legal avenues to address the harms of climate change is an important next step as legal systems adapt to the climate crisis,” says Thompson at the Yurok Tribe. And they also encourage a change in mindset, says Maia Wikaira, an environmental law attorney who worked with the Yurok Tribe’s legal team, and a member of the Ngāti Tūwharetoa, Te Rarawa and Ngāpuhi tribes of New Zealand. As tribal nations establish rights for nonhumans, it creates an opportunity for states to follow suit, and incorporate the concept into their own court systems. “It’s another example of where long-held Indigenous perspectives and association with the natural world are not only being embedded within our legal system — they’re being seen in popular environmental movements as an innovative way forward and a necessary step,” Wikaira says. “So, old is new again.”
Rights of nature have already been established in Colombia, Ecuador and India, with varying success, and have also appeared in non-Native communities in the U.S. In Ohio this February, voters passed a law — which is already being challenged — granting Lake Erie personhood rights. An attempt in 2017 by Coloradoans to force the state to grant the Colorado River rights of personhood collapsed after the state threatened possible sanctions against the lawyer behind the case.
Now, Thompson says, the relationship between the Yurok Tribe and the Klamath River is reflected in the tribe’s law. “It shifts the conversation, and it shifts the value system, because you see the environment has a right to be clean and protected for the environments sake.”
Anna V. Smith is an assistant editor for High Country News. Email her at firstname.lastname@example.org.
In early July, Bangladesh became the first country to grant all of its rivers the same legal status as humans. From now on, its rivers will be treated as living entities in a court of law. The landmark ruling by the Bangladeshi Supreme Court is meant to protect the world’s largest delta from further degradation from pollution, illegal dredging and human intrusion…
Following the ruling, anyone accused of harming the rivers can be taken to court by the new, government-appointed National River Conservation Commission. They may be tried and delivered a verdict as if they had harmed their own mother, Matin says.
“The river is now considered by law, by code, a living entity, so you’ll have to face the consequence by law if you do anything that kills the river,” [Mohammad Abdul Matin] says.
“That means … an owner has the right to modify their features, their natural features, or to destroy them all at will,” Aguirre says.
The idea of environmental personhood turns that paradigm on its head by recognizing that nature has rights and that those rights should be enforced by a court of law. It’s a philosophical idea, says Aguirre, with indigenous communities leading the charge…
In a 2018 study co-authored with Julia Talbot-Jones, O’Donnell shows that the onus of enforcement will fall on whoever is deemed the guardian of the waterway. And that can be anyone from a court-appointed body to the government itself — which may have chosen not to participate in environmentally friendly practices in the past — to nongovernmental organizations.
But when the construction company didn’t comply with the court’s ruling, “the NGO could not afford to run a second case,” says O’Donnell.
What’s more, the trans-boundary nature of rivers makes enforcement inherently difficult. This issue has come up in India, where the high court in Uttarakhand state in 2017 recognized the Ganges and Yamuna rivers as legal persons because of their “sacred and revered” status. The court named the state government as their guardians.
Soon after, the state government appealed to the Indian Supreme Court, arguing “that their responsibilities as guardians of the rivers were unclear because the rivers extended well beyond the border of Uttarakhand,” says O’Donnell…
The ordinance’s constitutionality was immediately challenged by a farm in a federal lawsuit. The farm argued the ordinance made it vulnerable “to massive liability” when it fertilizes its fields “because it can never guarantee that all runoff will be prevented from entering the Lake Erie watershed.” Then the state of Ohio joined that lawsuit, arguing it — not the citizens of Toledo — has the “legal responsibility” for environmental regulatory programs.
“What’s interesting is the state of Ohio intervening on behalf of the polluter, not on behalf of the people who passed the law,” says Tish O’Dell, the Ohio community organizer for the Community Environmental Legal Defense Fund.
The lawsuit is ongoing, though O’Dell predicts the ordinance will ultimately be overturned.
“But what I would say to people is it doesn’t matter what happens in the courts in Toledo with this case, because the genie has been let out of the bottle. And as hard as they want to try to put it back in, the people shouldn’t let them,” O’Dell says. “I mean, we have to change our environmental protection in this country and across the world, because obviously what we’re doing isn’t working.”
About Rights of Nature
Only 20% of the world’s wild ecosystems (biotic communities) remain intact and undisturbed.
More than 95% of U.S. land in the lower 48 has been modified.
The wild population of vertebrates worldwide is down 60% from 50 years ago.
According to the national Audubon Society, nearly half of North American bird species are at risk of losing habitats by 2080 due to climate change.
The world loses a species about every ten minutes …
E.O. Wilson has predicted that 25% wild species will survive to the year 2100.
Rights of Nature is an integral piece of the current conservation movement. The concept has taken off around the world since Ecuador recognized Nature’s rights in its constitution in 2008. Yet in most places in the United States Nature is still treated as property: legally it is a commodity.
Boulder Rights of Nature, a group of citizen activists lobbying for legal rights for the environment, is hosting the first symposium on rights of nature in Boulder County on Saturday at the Lafayette Public Library.
Running from 10 a.m. to 4 p.m., the free symposium was created to gauge the community’s interest in the issue and gather public feedback on a resolution Boulder Rights of Nature is currently formulating to protect the Boulder Creek watershed.
“The symposium offers an exciting opportunity for the community in Boulder Country to learn about the rights of nature movement and consider how it can protect our own precious ecosystems,” Grant Wilson, vice president of Boulder Rights of Nature and Directing Attorney at the environmental group Earth Law Center, said in a statement. “With the global environment trending towards collapse, we must consider new frameworks of governance that are protective of nature, including in Boulder.”
Several communities around the world have already begun this process, including Santa Monica, California, where Marsha Jones Moutrie, one of Saturday’s symposium speakers, helped lead the Santa Monica’s Rights of Nature Ordinance as city attorney from 1994 through 2016.
Here’s the release from Wild Earth Guardians (Jen Pelz):
As temperatures in Albuquerque climb to triple digits, the Rio Grande’s flows continue to recede leaving vast islands and sandy channels where the mighty river once roamed. The contrast between conditions this year and last year is stark.
In 2017, the April forecast for the Rio Grande at the Otowi Gauge was 128 percent of average; this year it is 20. The U.S. Drought Monitor’s maps by Brian Fuchs show New Mexico going from only about a quarter of the state in abnormally or moderately dry conditions in June of 2017 to the majority of the state in extreme or exceptional drought this year.
These conditions are driving the early low flows in the Basin, but are not the sole cause of the crisis as seems to be the nationwide narrative.
“Climate change is exposing cracks in western water policy and is shining a spotlight on the unsustainable allocation of water from our rivers and streams,” said Jen Pelz, Rio Grande Waterkeeper and Wild Rivers Program Director at WildEarth Guardians. “The emerging disaster on the Rio Grande this year comes from archaic water policies, lack of accountability by the states, and water managers acting like its business as usual despite the dire stream flow conditions.”
Three main flaws in water policy and enforcement are driving the situation this year. First, the Rio Grande Compact—an agreement between Colorado, New Mexico, and Texas that sought in 1938 to equitably allocate the waters of the Rio Grande between the states–is operating in dry years to magnify the climate changed induced flow declines. When flows are above average (128 percent), like in 2017, Colorado’s delivery obligations to downstream states roughly mimic the flows at the index gauge.
However, when flows cease to reach a threshold of about 4,000 cubic feet per second, the delivery obligation of Colorado ceases entirely meaning Colorado water users can take every last drop and be entirely within the terms of the compact.
The Rio Grande Compact, like other western water agreements, is based on data from an unrepresentative wet period in the historical record; therefore, the allocation system is far from equitable.
Second, the State of New Mexico provides no leadership or accountability to ensure water users in the state are only using what they need. The Middle Rio Grande Conservancy District, for example, requested a permit in 1925 to irrigate over 100,000 acres in the Middle Rio Grande valley from Cochiti Dam to Elephant Butte Dam. The District, however, has not (90 years later) ever proven that it has irrigated the acreage contemplated in the permit, nor that it needs the water it has claimed. This is a fundamental requirement under the New Mexico Constitution that is being blatantly disregarded.
Finally, the District—the entity that delivers water to farmers in the Middle Rio Grande—just last week finally limited its diversions to the more senior users. Despite anticipated flows of 20 percent of average, the District provided water to the most junior users—those that do not have any claim to water—from March 1 to June 12 (104 days).
“These institutional agreements and policies not only threaten the health of the river, but also put the most senior users’ ability to irrigate to the end of the season at risk,” added Pelz. “The wild west days are over and climate change is exposing these flawed choices. It’s time to find a new sustainable path forward.”
WildEarth Guardians works to protect and restore the wildlife, wild places, wild rivers, and health of the American West. Our Rio Grande: America’s Great River campaign seeks to provide the Rio Grande with a right to its own water and to reform western water policy for a sustainable future for this icon.
FromThe 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 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.
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.
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.
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.”
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. Lammer’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.
Weisheit, 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.”
Weisheit 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.”
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 Margil, 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.
Margil and other rights-of-nature proponents say that our current environmental legal framework — which is based on legislation like the Clean Air Act and Clean Water Act — 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 and 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.
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.
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 others 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 firsthand the problems along the river,” Falk said in a recent interview.
“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.
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
Colorado River Ecosystem/Deep Green Resistance v. the State of Colorado, Case No. 17-cv-02316, U.S. District Court, Colorado.
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.
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.