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Can A River Sue A Farmer?

16:27PM Nov 29, 2017

Lakes, aquifers and soil could be fair game if Colorado case sets precedent( Alexander Stephens, Bureau of Reclamation )

The agriculture industry has tremendous skin in the game involving cases dealing with proposed rights of nature. A first-of-its-kind Colorado case could be a bell cow for similar litigation around the bend.

Filed by the Community Environmental Legal Defense Fund (CELDF) on Sept. 26, the lawsuit claims the state of Colorado and Gov. John Hickenlooper are violating the rights of the Colorado River. CELDF asks the federal court to recognize the rights of the river, acknowledge personhood of the river and place the river under the protection of a guardian.

What river rights is CELDF asking the court to recognize? “… exist, flourish, regenerate, be restored and naturally evolve,” according to the filing. By extension, CELDF says possession of rights means the Colorado River is legally a person, and further, recognition of personhood means the court should grant guardianship of the river to Deep Green Resistance (DGR). According to a CELDF press release, DGR is a “social and environmental justice” organization.

Does the lawsuit and its unusual claims have legs? Michael Campana, professor of hydrogeology at Oregon State University, says the filing appears to be a showcase, but he doesn’t discount its implications for agriculture. “I cannot see how one state can be held solely responsible for the condition of a river flowing through seven states,” he says. “I’m not a lawyer, but this appears to be an example where someone sues because they can. Evolve, flourish and regenerate as rights? Those rights are vague terms and nobody even knows what they mean in this context.”

Although the groups involved are gaining publicity, Campana says the case might speak to the future. He expects more lawsuits of a similar nature. “There are a number of groups watching this case, and if a judge ruled favorably for the plaintiffs, there would likely be a flood of suits to follow,” he says. “Lakes, rivers or aquifers would be fair game. More important for agriculture, the implications of this case or one like it would extend to land, as in the rights of soil.”

If a judge legally recognizes the river as a person, the next step to guardianship could open the door to angels and devils. “A judge would have to decide who is competent enough to be a guardian or ‘next friend’ and that’s a huge can of worms,” Campana says. “A judge decides if a guardian has the science, skill set and means to be in charge of a river?”

Current environmental law places the Colorado River on a “destructive pathway,” says Mari Margil, associate director of CELDF. “This is a movement for cultural and legal change for an ecosystem in the same spirit as abolition, women’s rights and civil rights,” she says. “More and more people and governments recognize the need for real change. This lawsuit is a function of the desire for real change.”

Acknowledging the case is a long shot, Tiffany Dowell Lashmet says there might be a bigger agenda than one case about one river. In a CELDF press release, Margil notes: “Building on ongoing lawmaking efforts, we believe that this lawsuit will be the first of many which begins to change the status of nature under our legal systems.”

The complaint references excessive river appropriation as an issue harming the ecosystem, says Lashmet, an Extension ag law specialist at Texas A&M University. Farmers and ranchers hold 90% of water rights.

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