Is A Personhood Lawsuit The Best Way To Save The Colorado River?
Update 10-23-17: The Colorado Attorney General's Office has filed a motion to dismiss the lawsuit brought by Deep Green Resistance on behalf of the Colorado River ecosystem. The story has been updated to reflect this development.
A few months ago Denver civil rights lawyer Jason Flores-Williams had an idea. He’s made a name for himself recently in a class action lawsuit against the city of Denver where he’s representing the city’s homeless people.
“A lot of times I meet with class members, I take them out to dinner because they’re starving,” he said.
While at a Denver Mexican restaurant, the group started talking about homelessness. One of his homeless clients piped up.
“In an off the cuff, offhand comment [he] said, ‘the only thing more homeless than the homeless is nature,’” Flores-Williams recalled.
Meaning, no one’s really looking out for the natural world.
Flores-Williams grew up in a rural stretch of New Mexico, between Taos and Santa Fe, close to public lands and streams running through high-altitude, arid deserts.
“I really like this idea that if you are in the West, the Colorado River is a part of you,” Flores-Williams says. “Literally. You drink it.”
Nearly everyone agrees the Colorado River is distressed. That’s a big problem for the 40 million people — and growing — who depend on the river to make life in the arid West possible. Beyond humanity, its watershed is home to fish, birds, bears and other wildlife.
Flores-Williams says our entire legal system sees forests, prairies, mountains and rivers as resources to be tapped, not preserved. Looking from the outside, what the Colorado River really needed was a good lawyer.
“Something should be done, and nothing can be done under our current legal regime,” he says.
He teamed up with Deep Green Resistance, an environmental group that describes itself as “anti-civilization” and together they’ve filed a lawsuit: the Colorado River Ecosystem versus the state of Colorado.
That’s right, the entire river system is the plaintiff.
“The river would thenceforth have the ability to have that injury recognized and have the standing to bring that injury into court,” said Flores-Williams.
In other words, he wants to turn the Colorado River into a person in the eyes of the law.
An essential piece of the West
The Colorado River epitomizes the lengths we have gone to make human life possible in the arid West. Dozens of dams hold water in massive reservoirs until it's needed downstream. Hundreds of miles of ditches and diversions act like straws, sucking the river’s water toward farm fields and major cities like Denver, Albuquerque, Los Angeles, Las Vegas, Tucson and Phoenix.
Even the river’s headwaters high in Rocky Mountain National Park can’t escape the longstanding imprint of human manipulation on the river. Right next to the river’s first trickle runs the Grand River Ditch, which pulls water from the Colorado River watershed on the Western Slope to the East Slope to water crops.
All those human machinations to spur development are exactly what those who filed the lawsuit are trying to curb. They say the river is overtaxed and overburdened and that it needs fundamental rights to survive.
While Mark Squillace, a natural resources law professor at the University of Colorado-Boulder, agrees the river is in dire straits, he says this lawsuit is the wrong way to fix it.
“To have an individual environmental group come in and say they're representing the river seems highly problematic to me,” Squillace says. “And I have no confidence whatsoever that these people necessarily represent the best interest of the Colorado River.”
Squillace says his big problem with the lawsuit is it explicitly states that Deep Green Resistance should be in charge of making decisions for the river.
“The American system of law is replete with doctrines, examples and solutions with regard to when a party cannot bring suit itself and requires another to stand in its stead, including guardian ad litems,” the complaint filed in U.S. District Court reads.
Squillace says that’s a stretch.
“I mean, a child is different than the Colorado River,” he says.
But while that makes it sound like they disagree on everything, they agree on plenty of points.
Squillace says we should be debating whether or not it’s best that Western water is considered a property right to be divvied up among states for use on farms and in sprawling developments.
But how to fix it? That’s where things falls apart.
“You would have to say that this seems like an abuse of the judicial system,” Squillace says.
The problems the lawsuit brings up are political. They should be dealt with by negotiation, legislation and leadership, not by a radical environmental group appointed to represent a river in court, he says.
A first of its kind? Not quite
While this is the first lawsuit of its kind on the Colorado River, the concept of giving legal rights to a river system are not new. Mari Margil, associate director of the Community Environmental Legal Defense Fund, which is providing guidance to the lawsuit, has been working on so-called “rights of nature” laws for years.
“I think this lawsuit comes as part of a growing movement,” she says, citing efforts and court decisions in New Zealand, Ecuador and India that enshrined the rights of river systems in law.
But even abroad these efforts have mixed results. India’s court decision giving rights to the Ganges and Yamuna rivers lasted only five months, before being overturned by India’s Supreme Court in July.
Still, Margil says the U.S. is ripe for these types of lawsuits. If corporations can be considered people in the American legal system, she says, why not rivers?
“Our environmental laws legalize unsustainability,” Margil says. “We’re using the law to legitimize the use of ecosystems, the use of the Colorado River, such that the Colorado doesn't even have enough water to meet all of the ‘property rights’ that people have to the water.”
That difficulty in managing a limited resource is something Eric Kuhn knows well. He was the general manager for the Colorado River District, which manages the river on the Western Slope, for 21 years. He read about the lawsuit in a New York Times article published soon after it was filed in September.
“It sounds like a publicity stunt to me,” he says. “I think it worked because it got a lot of press attention. But I’m skeptical a court would find that a river is a person in the legal sense.”
The Colorado attorney general’s office declined to comment on the case. Lawyers with the state filed a motion to dismiss the lawsuit, but the attorney who brought the case, Jason Flores-Williams, says he's not prepared to back down.
“If the court agrees with the state of Colorado and dismisses the complaint then we will -- and you can put this down -- we will appeal it to the 10th Circuit.”
If it fails there, the Colorado River will remain just a river -- not a person -- in the eyes of the law.
This story is part of a project covering the Colorado River, produced by KUNC and supported through a Walton Family Foundation grant. KUNC is solely responsible for its editorial content.