Colorado AG moves to dismiss request seeking ‘person’ status for Colorado River

The state of Colorado moved in federal court this week to dismiss a lawsuit from an environmental group and five of its members who are seeking to declare the Colorado River ecosystem a “person” and represent its interest in court.

In a filing from the Attorney General’s Office on Tuesday, Colorado wrote to the U.S. District Court in Denver that Deep Green Resistance and its members do not have jurisdiction to sue the state in federal court under the 11th Amendment, do not have standing in the case due to lack of a specific injury and do not state a claim “upon which relief can be granted.”

“The complaint alleges hypothetical future injuries that are neither fairly traceable to actions of the state of Colorado, nor redressable by a declaration that the ecosystem is a ‘person’ capable of possessing rights,” the state told the federal court.

Colorado said the questions of “whether the ecosystem should have the same rights as people, and who should be allowed to assert those rights in federal courts, are matters reserved to Congress by the Constitution.”

The case — Colorado River Ecosystem/Deep Green Resistance v. the State of Colorado — is being heard by U.S. District Court Judge Nina Wang, and a status conference is set for Nov. 14.

The Sept. 25 civil action from Deep Green Resistance asked the court to declare that “the Colorado River ecosystem is a ‘person’ capable of possessing rights,” including “the rights to exist, flourish, regenerate and naturally evolve.”

The complaint asks that members of Deep Green Resistance be allowed to “serve as guardians, or ‘next friends,’ for the Colorado River ecosystem.” And it asks that they be able to file lawsuits to “force the state of Colorado to take certain actions, as violations of the rights of the Colorado River ecosystem.”

But the state of Colorado rejected the idea of an ecosystem, or its “next friends,” having rights to sue.

“No environmental statute or other law authorizes the ecosystem to bring a suit on its own behalf,” the state said in its motion to dismiss.

In reference to a prior case law, the state also said “there is no hint that ‘person’ includes inanimate objects, like the soil, water, and plants that, together with animals, create an ecosystem.”

In regard to the issue of personhood, the state told the court that Citizens United v. Federal Election Commission “does not provide an instructive analogy in this case.”

In its complaint, Deep Green Resistance cited the Citizens United case and told the court because “ordinary” corporations have “been repeatedly recognized as a ‘person’ for purposes of constitutional protection and enforcement” then the Colorado River deserves the same status and should be allowed to “hire a law firm, actively participate in its representation or testify in court.”

But the state said even if the Colorado River ecosystem had “person” status, it wouldn’t cure the river’s ills.

“There is no suggestion — even a speculative one — that declaring the ecosystem a ‘person’ would address the alleged injuries,” the state said.

The plaintiffs include Deep Green Resistance, a subcommittee of DGR called Southwest Coalition, and five Deep Green Resistance members. The coalition’s tagline on its website is “Defending Mountains, Basins, Deserts, Prairies and Rivers of the Southwest.”

The first goal listed in the group’s published strategy document is “to disrupt and dismantle industrial civilization; to thereby remove the ability of the powerful to exploit the marginalized and destroy the planet.”

In its complaint, Deep Green Resistance lays blame for the depleted state of the Colorado River on the state of Colorado.

“One reason the Colorado River rarely reaches the sea is the compacts and laws that regulate how much water can be diverted from the river allow humans to take more water from the river than physically exists,” the complaint from Deep Green Resistance said. “The state of Colorado takes more water from the river than any of the other jurisdictions, save California.”

But the state, in its motion to dismiss, denies culpability for the condition of the Colorado River.

“Any injury that might result in the future from alleged ‘overallotment’ of water from the Colorado River cannot be fairly traceable to the state,” Colorado’s motion said.

The state also said Deep Green Resistance was asking the court “to make sweeping declarations that would fashion new law out of whole cloth.”

“It asks the court, rather than Congress or the executive branch, to declare that the ecosystem is a ‘person whose rights — whatever they might be — can be defended in court by self-declared representatives,” the state said. “Such a declaration has the potential to alter the fabric of American domestic and foreign policy.”

Aspen Journalism is collaborating with The Aspen Times, the Glenwood Springs, Post Independent, the Vail Daily and the Summit Daily News. More at http://www.aspenjournalism.org.