How giving legal rights to nature could help reduce toxic algae blooms in Lake Erie — The Conversation

Lake Erie algae bloom July 30, 2019. Photo credit: NASA Earth Observatory image by Joshua Stevens, using Landsat data from the U.S. Geological Survey.

From The Conversation (Dana Zartner):

August and September are peak months for harmful blooms of algae in western Lake Erie. This year’s outbreak covered more than 620 square miles by mid-August. These blooms, which can kill fish and pets and threaten public health, are driven mainly by agricultural pollution and increasingly warm waters due to climate change.

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.

Lake Erie harmful algal bloom forecasts since 2002. NOAA

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.

Maumee Bay Brewing Co. in Toledo, Ohio is making green, murky beer to draw attention to Lake Erie’s algae problems. AP Photo/John Seewer via The Conversation

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.

Local politicians and farmers opposed the measure, but it passed with 61% of the vote, although only 8.9% of eligible voters participated. A day later, Drewes Farm Partnership of Ohio filed a lawsuit arguing that it was unconstitutional. While the city of Toledo has taken up defense of the Lake Erie Bill of Rights, the state of Ohio is siding with Drewes Farm.

Learning from Te Awa Tupua

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 is a major river on the North Island of New Zealand. Dana Zartner, CC BY-ND via The Conversation

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.

On July 22, 2019, Ohio Gov. Mike DeWine signed a budget bill which includes a provision stating that “Nature or any ecosystem does not have standing to participate in or bring an action in any court.” The bill creates a new fund called H2Ohio, purportedly to provide US$172 million to address pollution in Lake Erie, but critics want more proactive measures.

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.

From NASA Earth:

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.

The Klamath River now has the legal rights of a person — @HighCountryNews

From The High Country News (Anna V. Smith):

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 Klamath River runs through Redwood National Park, California. The Yurok Tribe passed a resolution protecting the river from harm by granting it the same rights as a person. Photo credit: Don White/Alamy

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 annasmith@hcn.org.

Should Rivers Have Same Legal Rights As Humans? A Growing Number Of Voices Say Yes — National Public Radio

Satellite imagery of a toxic algal bloom on Lake Erie in 2011. The image is gorgeous, but microcystis aeruginosa, the green algae pictured here, is toxic to mammals.
NASA Earth Observatory via Popular Science.

From National Public Radio (Ashley Westerman):

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.

What is environmental personhood?

Bangladesh follows a handful of countries that have subscribed to an idea known as environmental personhood. It was first highlighted in essays by University of Southern California law professor Christopher D. Stone, collected into a 1974 book titled Should Trees Have Standing? Toward Legal Rights for Natural Objects. Stone argued that if an environmental entity is given “legal personality,” it cannot be owned and has the right to appear in court.

Traditionally, nature has been subject to a Western-conceived legal regime of property-based ownership, says Monti Aguirre with the environmental group International Rivers.

“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 2008, Ecuador became the first country to enshrine the legal rights of nature in its constitution. Bolivia passed a similar law in 2011. Meanwhile, New Zealand in 2017 became the first country to grant a specific river legal rights, followed by the Indian state of Uttarakhand. This year, the city of Toledo, Ohio, passed what is known as the Lake Erie Bill of Rights to protect its shores, making it one of several U.S. communities to have passed legislation recognizing the rights of nature

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.

In Ecuador, says O’Donnell, the Global Alliance for Rights of Nature and others sued a construction company trying to build a road across the Vilcabamba River and initially won in court.

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…

he struggle to achieve this paradigm shift is also taking place on the shores of Lake Erie, in Toledo, Ohio. Earlier this year, the city passed an ordinance that would allow the its citizens to sue on behalf of the lake, arguing that it had gotten so polluted, there was no choice.

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.”

Say hello to BoulderRightsOfNature.org

Click here to go to the website:

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.

From The Longmont Times-Call (John Spina):

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.

Like many Westerners, giant sequoias came recently from farther east. Of course, “recent” is a relative term. “You’re talking millions of years (ago),” William Libby said. The retired University of California, Berkeley, plant geneticist has been studying the West Coast’s towering trees for more than half a century. Needing cooler, wetter climates, the tree species arrived at their current locations some 4,500 years ago — about two generations. “They left behind all kinds of Eastern species that did not make it with them, and encountered all kinds of new things in their environment,” Libby said. Today, sequoias grow on the western slopes of California’s Sierra Nevada.

More Than #ClimateChange Threatens Iconic Rio Grande — Wild Earth Guardians

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.

West Drought Monitor September 25, 2018.

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.

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

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

From The Glenwood Springs Post Independent (Lindsay Fendt):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Lindsay Fendt, Aspen Journalism

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

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

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

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

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

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

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

Intimidation?

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

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

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

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

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

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

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

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

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

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

Rights of rivers?

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

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

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

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

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

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

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

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

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

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

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