Can a River Sue a Farmer?

Wed, 27 Jan 2021 20:11:04 GMT

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.”

Wanted: More Pastures for West's Overpopulated Wild Horses

Tue, 17 Nov 2020 04:52:46 GMT

By MEAD GRUVER Associated Press

CHEYENNE, Wyo. (AP) — If you ever wished to gaze at a stomping, snorting, neighing panorama of Western heritage from your living-room window, now could be your chance.

A classic image of the American West — wild horses stampeding across the landscape — not only has endured through the years but has multiplied past the point of range damage. Through May 3, the U.S. government is seeking more private pastures for an overpopulation of wild horses.

Many consider rounding up wild horses to live out their lives on private pastures a reasonable approach to a tricky problem. Wild horses, after all, not only have romantic value, they are protected by federal law.

Just keep in mind a few of the dozens of requirements for getting paid by the government to provide wild horses a home.

“It’s not like you can do this in your backyard, or even a 5 acre (2 hectare) plot,” said Debbie Collins, outreach specialist for the U.S. Bureau of Land Management’s Wild Horse and Burro Program in Norman, Oklahoma.

You need a lot of fenced-in land, enough to sustain anywhere from 200 to 5,000 healthy horses. Exactly how much land depends on pasture quality as determined by the government, but you can safely assume several hundred if not thousands of acres (hectares).

The pastured horses typically are left on their own with little human intervention. Still, they require continuous water and basic shelter from the elements, such as trees or a canyon; supplemental forage; and corrals for loading and unloading from trailers.
Participants in the private-pasture system must live in 14 Western and Midwestern states, from eastern Washington to the Texas Panhandle. Over two-thirds of the 37 existing off-range pastures are in Oklahoma and Kansas.

And: These horses aren’t pets. They’ve had little exposure to people. Many are over 5 years old and therefore not ideal for training and individual adoption or sale, other options available through the BLM.

Still, there’s no shortage of interest in the off-range pasture program. People call all the time asking for details, Collins said.

“My only advice would be to go into it with your eyes wide open,” said Dwayne Oldham, a former Wyoming state veterinarian who has taken in wild horses on his family’s Double D cattle ranch outside Lander, Wyoming, since 2015.

Working with the government can be demanding, but providing for the over 130 horses on the Wind River Wild Horse Sanctuary on the ranch isn’t too difficult, Oldham said.

The sanctuary is a little different from most private wild-horse pastures: It’s open to the public. Tourists headed to Yellowstone and Grand Teton national parks increasingly stop there.

About 50 miles (80 kilometers) to the south, cattle ranchers, wild horse advocates and the BLM have been embroiled in decades of lawsuits over wild horses in an area of mostly unfenced, interspersed public and private lands called the Checkerboard. The booming wild horse population there competes with cattle for forage and water in the high desert, the ranchers claim.

The BLM abides by the 1971 Wild and Free-Roaming Horses and Burros Act, which protects wild horses and burros on BLM land in 10 Western states, attorneys for the government say.

“We want to be part of the solution and not just the adversary,” Oldham said.

A group often involved in wild-horse litigation, the American Wild Horse Campaign, says darting mares with contraceptives is the best answer to overpopulation but is underused. Roundups only encourage compensatory breeding and overpopulation, said Grace Kuhn with the group.

However, the group doesn’t oppose off-range pastures as an alternative to keeping wild horses in corrals for long periods.

“We do advocate that if the government is going to be removing wild horses from the range, long-term is more cost-effective than short-term holding,” Kuhn said.

Over 55,000 more horses and burros live wild in the West than the roughly 27,000 the BLM says can thrive in harmony with the landscape.

Adoptions and sales through the Wild Horse and Burro Program have recovered to over 3,400 a year after hitting a low of about 1,800 in 2014.

But while the number of off-range pastures has boomed from just a couple in the 1990s, the number of horses on them hovers very close to their current carrying capacity of about 36,500.

The number of pastured wild horses is determined mainly through roundups and adoptions. Stallions are gelded and kept at different off-range pastures than mares, preventing reproduction aside from the occasional pregnant mare rounded up from the wild.

How many new off-range pastures are established through the latest bid solicitation, the first of its kind since 2016, will depend on costs and how many existing ones get renewed, Collins said.

“It’s just a happier, healthier environment for a horse to be able to be out in a pasture,” she said.
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