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Does the Colorado River Have Rights?

The river doesn't need rights if people have strong property rights to its water.

RiverColoradoFotoeye75DreamstimeFotoeye 75/Dreamstime"In a first-in-the-nation lawsuit filed in federal court, the Colorado River is asking for judicial recognition of itself as a 'person,' with rights of its own to exist and flourish." So declares a press release from the activist organization Deep Green Resistance. The lawsuit against Colorado's governor is being filed in federal district court by the Community Environmental Legal Defense Fund (CELDF), which says it "seeks a ruling that the Colorado River, and its ecosystem, possess certain rights, including the right to exist, flourish, evolve, regenerate, and restoration."

In support of the legal theory that rivers have rights, the suit cites Supreme Court Justice William Douglas' famous dissent in Sierra Club v. Morton (1972). In that case, the Sierra Club sued to block the Disney company from building a ski resort at Mineral King in the Sequoia National Forest. The majority of the court ruled that the Sierra Club did not have legal standing—that is, that the group failed to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. (As it happens, the ski resort was never built anyway.)

In his dissent, Justice Douglas, with considerable legal poetry, argued:

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

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. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction.

The CELDF also cites a recently enacted provision in the constitution of Ecuador that confers rights on nature:

Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.

Let's just say that the law pertaining to the use of water is complex. I personally prefer common law riparian rights as a way to govern streams, rivers, and lakes. Riparian water rights give landowners along a stream rights to an undiminished quantity and quality of water. Consider the 1913 case Whalen v. Union Bag & Paper, in which a New York Court of Appeals ruled that a million-dollar paper mill employing 500 people did not have the right to pollute the water flowing past Robert Whalen's 255-acre farm on Kayaderosseras Creek, near Albany, New York. The Court reasoned:

Although the damage to the [farmer] may be slight as compared with the [paper mill's] expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion it would deprive the poor litigant of his little property by giving it to those already rich.

It did not matter how much money had been invested or how many jobs were at stake; the paper company had violated Whalen's right to an undiminished quantity and quality of water flowing past his farm.

In the western United States, the prior appropriation doctrine awarded water rights to individuals on a "first-in-time, first-in-right" basis. Those who first diverted water had first claim on water. State water laws also typically require that rightsholders divert water for use; otherwise, they forfeit it to other users. (In other words, use it or lose it.) Thus state intervention basically stymied the development of water markets that would enable farmers, cities, ranchers, fishers, canoeists, and environmentalists to bargain among themselves on the best ways to manage rivers and streams. The Property Environment Research Center* in Bozeman, Montana, describes how markets enable the nonprofit Scott River Trust in Siskiyou County, California, to lease water from rightsholders in order to maintain instream flows to support salmon runs. There is no need to confer rights on the Scott River when trading transferable rights to water make it possible to protect salmon.

Deep Green Resistance and CELDF have a point in that unowned natural goods are subject to a tragedy of the commons, in which users have an incentive to overexploit and ruin them. But instead of trying to confer rights on nature, the better course is to assign strong property rights to people, so that individual and common owners are empowered to protect resources and environmental amenities.

*Disclosure: I have been the happy beneficiary of grants, conferences, and intellectual enrichment from PERC for many years.

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  • BYODB||

    Pretty sure if the River had rights the EPA would be forced to fine itself. Oops.

  • Chipper Morning, Mean Girl||

    If a river has rights, what about a liver? Can my liver sue me?

  • Scarecrow Repair & Chippering||

    A liver has lights, racist.

  • Rat on a train||

    As soon as it is sober.

  • Longtobefree||

    Well, if $5,535.47 can be sued by the federal government, why not a river?

    And oh, by the way, can I sue the Colorado River for all the erosion in the Grand Canyon?

  • Gilbert Martin||

    "And oh, by the way, can I sue the Colorado River for all the erosion in the Grand Canyon?"

    How about letting the Colorado River and the Grand Canyon sue each other?.

    Of course it'll be a bitch getting them into the courtroom to testify!

  • TrickyVic (old school)||

    ""Of course it'll be a bitch getting them into the courtroom to testify!""

    They will be represented by Celleno and Barnes respectively.

  • juris imprudent||

    Wait until the Gulf of California brings claims for everything dumped into it.

  • Zeb||

    If you can demonstrate the harm you have suffered from the erosion of the Grand Canyon, sure, why not?

  • Longtobefree||

    I fell into the canyon and died; does that count?

  • damikesc||

    "In a first-in-the-nation lawsuit filed in federal court, the Colorado River is asking for judicial recognition of itself as a 'person,' with rights of its own to exist and flourish."

    Seems like the activist group is saying it is requesting rights. Has anybody heard the Colorado River itself making such a claim?

    Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.

    Says who? These clowns cannot call upon authorities to enforce MY rights. If MY rights are more sacrosanct than "nature's", then nature, clearly, does not have rights. And how do they know what nature's name is? I've never heard a tree say "yo, call me this"

  • BYODB||

    Look, if an Earthquake happens in your neighborhood it's because you were trespassing. Honestly, all human life should really just be expunged. We're a virus, after all, but we insist you go first. We are the only true stewards of nature, empowered to speak for Rivers!

    -Deep Green Resistance

  • Zeb||

    Nature, or Pachamama, where life is reproduced and occurs

    I'm pretty sure humans are part of that, being alive and reproducing and all.

  • TrickyVic (old school)||

    ""rights of nature.""

    No rights in nature, just responsibility.

  • Paloma||

    How the hell did this river learn to read and write is what I want to know.

  • Lily Bulero||

    You can never sue the same river twice.

  • Fist of Etiquette||

    Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

    Those things all have something in common, which the river does not.

  • Robespierre Josef Stalin||

    Ron,

    We have an example of your system just a couple of miles upriver. A gold miner with a claim on said upstream river adamantly refuses to clean up the tailings associated with his mine and let's the rest of us drink the heavy metals associated with his operation. I just thought of him as a rapacious asshole who didn't give a shit about anybody but himself, but from what your saying he's some kind of new age 21st century symbol of liberty. Thanks man! You blow my mind!

  • BYODB||

    lol, even if true drinking straight out of the river without purification would mean you're a class A retard that will probably die because of animal offal in your drinking water.


    Of course, obviously, the old mines that the EPA accidentally flushes into the river are far more eco-conscious.

  • Robespierre Josef Stalin||

    I guess you have to ask yourself who concentrated that mercury in the 1st place. There's a reason rivers lit themselves on fire back in the good old days of the 1950s and 60s. It wasn't because of the EPA.

  • Sir Chips Alot||

    but it was because of the government.

  • Lily Bulero||

    Look, this lawsuit is in the Bible:

    "But let judgment run down as waters, and righteousness as a mighty stream." - Amos 5:24

  • MSimon||

    Where is the Andy verse?

  • Robert||

    Never mind that, what about the Uni verse?

  • Gilbert Martin||

    "In a first-in-the-nation lawsuit filed in federal court, the Colorado River is asking for judicial recognition of itself as a 'person,' with rights of its own to exist and flourish." So declares a press release from the activist organization Deep Green Resistance"

    Oh so the river is asking for judicial recognition, eh?

    Show me the river's signature on the papers that were filed for the lawsuit.

    It appears that "Deep Green Resistance" is full of Deep Red Bullshit.

  • markm23||

    Yes! The worst part of this lawsuit isn't the attempt to give an inaminate object "rights", but the presumption that a particular organization has standing to act as that object's legal representative.

  • Get To Da Chippah||

    Inanimate objects have rights. A clump of human cells does not.

    /progderp

  • Lester224||

    Pollution in rivers can contaminate whole watersheds that are used by people who don't own land on the river. Air pollution moves around to impact areas not owned by the polluters nor by people who have the money and time to bring lawsuits. Pollution on land can runoff into rivers and watersheds that are far from the landowners. By the time people far away from a polluter understand that a landowner or corporation has done something to impact them negatively, the damage can be done. The polluter (or corporate polluter) can fight back in court and avoid paying damages until well after responsible executives have died or retired, receiving a golden parachute. Avoiding a tragedy of the commons where pollution is concerned requires (gasp) regulation as well as property rights. Lawsuits alone are not fast enough.

  • ||

    This is where I think the concept of creating a legal entity representing the river might actually be useful. Because it allows lawsuits to happen much further upstream (no pun intended), before the downstream impacts occur. It makes it possible to sue for damages to a commons before the impact on the commons is felt by later users.

  • Paloma||

    They should find a voodoo priestess to make sure the river's true wishes are known.

  • Hateful Reactionary||

    Full disclosure should mean leftists after spewing environmental nonsense say "I will happily throw you into prison and take your livelihood".

  • ||

    It's an interesting concept, as a legal fiction.
    it's often difficult to untangle rights to things like water and air which flow across people's property boundaries.
    Rights frameworks based on mechanisms other than geographical boundaries can be useful in a libertarian framework for adjudicating disputes over resources that cross those boundaries. Example: Elinor Ostrom's work on fishing catch-shares, and so forth.
    I doubt "Deep Green Resistance" has formulated the idea properly, but it would be intriguing to come up with a libertarian version of it which deals with the tragedy of the commons problems on public lands or unowned border-crossing resources.
    We could dispense with the nonsense about the intrinsic rights of nature but possibly make use of the idea of creating a legal fiction like a corporation representing a commons.

  • Diane Reynolds (Paul.)||

    wouldn't it be easier to protect the rights of people affected by the polluting of air and water?

  • ||

    That might make things a lot more complicated and difficult, because there are many downstream parties and it can be hard to identify all of them, and it might take a long time before they notice the impacts.

    I'm just thinking there is some possible merit to create an intermediate legal fiction in "the river" - it could simplify the process of adjudicating all of these rights claims.

  • Lily Bulero||

    Brother Sun and Sister Moon
    It's time that you got to suin'

  • Diane Reynolds (Paul.)||

    If you believe that rights are strictly a construct of governments and subject to the whims of a constituency, then a ham sandwich could have rights.

  • Longtobefree||

    It can also get indicted -- -- --

  • Rat on a train||

    The Mississippi better lawyer up for pending lawsuits against it for flooding property. It doesn't matter, it will probably be locked up for life after the murder trial.

  • TrickyVic (old school)||

    I herby represent the Colorado River and request the case be heard on The People's Court.

  • Diane Reynolds (Paul.)||

    Judge Wopner will not be pleased.

  • Longtobefree||

    We need to discuss actors guild fees, and foreign distribution fights first.

  • Uncle Jay||

    RE: Does the Colorado River Have Rights?
    The river doesn't need rights if people have strong property rights to its water.

    Who are we to deny a river rights?
    What next?
    Deny a river the right to own a gun?

  • Paloma||

    Can we sue the river if it didn't warn someone it had strong currents and that person drowned

  • Sevo||

    "...In his dissent, Justice Douglas, with considerable legal poetry, argued:..."

    I did not know that "bullshit" could be spelled as "legal poetry".

  • MSimon||

    Rivers steal water from all over the countryside and then haul it away.

    Rivers are thieves.

  • MSimon||

    Idaho knows this. Thief River.

  • C. S. P. Schofield||

    "But instead of trying to confer rights on nature, the better course is to assign strong property rights to people, so that individual and common owners are empowered to protect resources and environmental amenities."

    That is only a better course if the point is trying to protect the rives and its ecosystem. As anyone who watches the Ecopests can readily see, this is about creating the perfect class of 'victim' for Progressives to 'speak for'; i.e. a 'victim' that will never contradict them. They have learned the lesson of the Plantation owners who claimed to be doing 'what was best' for the black slaves, and the anti-suffragette jerks who asserted that women needed to be looked after....don't patronize people who might invite you to take a flying f*ck at inopportune moments.

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  • JFree||

    Where in the fuck did this absolutism about 'property in land' come from? It sure as hell didn't exist before the 20th century.

    Property has always required three legal elements - the right to use the thing (usus), the right to the fruits of the thing (fructus), and the right to destroy the thing (abusus). Land NEVER had that third right attached in either common law or civil law or any legal system. It's why Jefferson was able to write - I set out on this ground which I suppose to be self evident, "that the earth belongs in usufruct to the living;". Yes it was self-evident to everyone then and that EXCLUDES abusus. It's also why all land title in this country is fee-simple - not alloidal. No one has the right to destroy land - because land was not created by man and therefore that destruction would be a theft from the future.

    This lawsuit can only arise because we are too fucking stupid to have realized that we are under the impression that we have 'distributed' an abusus right that we had no right to distribute in the first place because it doesn't fucking belong to us. And no - the free market cannot figure out how to manage those abusus rights once distributed - because once distributed, we inevitably think of land as 'property' and therefore pretend it is the same as other 'property'.

  • Sanjuro Tsubaki||

    Declare it a corporation. One of those evil corporations.

  • Martin Owens||

    Behold the endgame of this neo-paganism.

    A river is a sentient being, but it cannot speak, So what will prevent the evil capitalists from having their wicked way with helpless innocent Nature? Alas, all is lost!

    But hark! Hoofbeats of shining steeds! The cavalry of the Elect rides in to save the day!
    Our Galahads and Guineveres of Gaia will swoop down to seize righteous power, clad in virtuous green armor
    ( shining white armor being, of course, a racist taboo). And wrapped in impeccable Enlightened wisdomt, they will punish the guilty and enforce true Earth Justice.

    Now, rinse off the hogwash and soul-butter and what have we really got? The usual claque of hyper-ambitious and self righteous "Progressives" with yet another " compassionate" fairy tale that puts Government in charge of everything and themselves in charge of Government. Under the guise of "representing" rivers, lakes, trees, stray cats, mud-puddle microbes and cockroaches ( free range roaches only, no city bugs need apply) they demand power they could never win by an honest vote, and money they have never earned.

    "Forward thinking" laws and regulations are already well advanced toward the true Collectivist goal: a Government hand -theirs- in every pocket and a government shadow -theirs- over every soul. Those of us who still wish to own our own lives can only hope there is still time to stop them. Otherwise we will see the revival of another ancient pagan custom: human sacrifice.

  • buybuydandavis||

    "In a first-in-the-nation lawsuit filed in federal court, the Colorado River is asking for judicial recognition of itself as a 'person,' with rights of its own to exist and flourish."

    The Lorax can claim to "speak for the trees, for the trees have no tongues" precisely because the trees have no tongues and can't speak for themselves.

    "I speak for the Trees" is a claim that *your* will should control how the trees are used by other people. It's a grasp for power, nothing more.

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