Can a River Sue a Farmer?

November 6, 2017 07:52 AM
 
ALEXANDER STEPHENS

Does a river have rights? Indeed, according to a lawsuit filed in Colorado. As outlandish as the legal question seems to many observers, the agriculture industry has tremendous skin in the game involving cases dealing with proposed rights of nature. Regardless of outcome, this first-of-its-kind 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. 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 present publicity, Campana says the case may 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. Lakes, rivers, or aquifers would be fair game. Even more importantly for agriculture, the implications of this case or one like it would extend to land, as in the rights of soil.”

If a judge granted rights to the river and recognized it legally as a person, would the next step to guardianship 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 explains. “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,” according to 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. More and more people and governments are recognizing the need for real change. This lawsuit is a function of the desire for real change.”

Tiffany Dowell Lashmet, Extension agricultural law specialist at Texas A&M University and host of Ag Law in the Field Podcast, says the case could have an impact on agriculture: “The actual complaint references excessive river appropriation as one of the current issues harming the ecosystem. Well, 90% of water rights holders are farmers and ranchers.”

In a CELDF press release issued days before the lawsuit was filed, Margil references future lawsuits: “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.”

“It’s fair to say the case is a real longshot, but people need to know it may be laying groundwork for the future,” Lashmet adds. “There may be a bigger agenda than just one case about one river.”

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