Rights of Rivers

Amy Scott: Back in 2017, New Zealand’s Parliament took a historic vote.

Te Awa Tupua (Whanganui River Claims Settlement) Bill (2017): We’ve heard this bill today called revolutionary, unique. No, I want to call it extraordinary.

Amy Scott: Lawmakers were asked to decide whether to give the Whanganui River the third longest river in the country. A special status.

Te Awa Tupua Whanganui River Claims Settlement Bill (2017): Here today we recognize a river and its catchment as a legal entity, a legal person.

Amy Scott: That’s right a legal person. It would be the first river in the world to gain the status. Maori, the indigenous people of New Zealand had been fighting for the rights of the Whanganui since the 1800s when British colonizers began settling along the river, exploiting it for industry, and over time polluting the water and harming the wildlife that depended on it. Person-hood would give the river the same rights as people in New Zealand and allow guardians to speak on its behalf.

Te Awa Tupua (Whanganui River Claims Settlement) Bill (2017): The question is that the motion be agreed to Those of that opinion will say Aye. Aye. The contrary: no. The ayes have it.

Amy Scott: The day Parliament passed the law, a group of Maori people were sitting in the chamber along with lawmakers and saying a folk song called a waiata in celebration.

Jacinta Ruru: It was a change moment; a whole catalyst change moment for all of us in New Zealand and incredibly proud of it.

Amy Scott: Jacinta Ruru is New Zealand’s first Maori Professor of Law. She’s at the University of Otago.

Jacinta Ruru: Where I teach and I research ideas around how our legal systems can be more respectful and accommodating to indigenous peoples.

Amy Scott: What significance does the river have to Maori people?

Jacinta Ruru: The people who live alongside that Whanganui river, they talk about I am the river the river is me that whole integral notion that the health and wellbeing of one’s people is an intimately linked into the health and well being of the river. It is who they are.

Amy Scott: Jacinta says the 2017 law wasn’t just about protecting the river. It was a huge step in bridging two very different worldviews.

Jacinta Ruru: This moment and law completely disrupted that colonial liens of understanding property law of understanding environmental law, and put at the forefront for all of us as a country, a Maori worldview and a Maori legal system.

Amy Scott: In practice, person-hood, means the river through its guardians can now take polluters or anyone seen as harming the river to court to enforce its rights. The law also provided funding to compensate the local tribe create a legal framework for the river and restore its health and well being just synthesis. It was the beginning of a much longer process.

Jacinta Ruru: It will take generations to unravel, undo all of that colonial damage destruction, because we have to work towards resetting our relationships, our human relationships with this river.

INTRO

Amy Scott: Resetting our relationships. I wondered, how could that happen for another distressed river on the other side of the world? I’m Amy Scott, welcome to How We Survive a podcast for Marketplace about people navigating solutions to a changing climate. This is our final episode of the season, Episode 8: The Rights of Rivers.

Amy Scott: This season, we’ve been talking a lot about the Colorado River, how it’s been carved up and divvied out and fought over who has rights to use it and who doesn’t. But what about the rights of the river itself? For this final episode of the season, we’re going to look at a big picture solution. Because there’s a growing movement rooted in indigenous values to give a legal voice to nature to creeks, fish, crops and trees. It’s known as rights of nature. This episode we’re asking, could we follow New Zealand’s lead and give the Colorado River the same rights and protections as people and corporations have in our country? And what would that mean for the river and those of us who depend on it? To find out how rights of nature might work for the caller Auto river. I wanted to talk to the guy who actually tried it. So before we dive in, I want to ask about your email signature, which as a Gen-Xer. I love from Jeff Spicoli. Tell me about that.

Jason Flores-Williams: Yeah, sure I mean, I love I think Fast Times at Ridgemont. High is is like not just like a quart classic, but is a classic as a commentary on the United States.

Amy Scott: Jason Flores-Williams is a lawyer who works on environmental and civil rights cases. And his email signature says a lot about his style. It’s a quote from Sean Penn’s character in the 1982 movie Fast Times at Ridgemont High.

Jason Flores-Williams: The references in like summarizing, like, you know, the American Revolution, the Thomas Jefferson quote, where he says, you know-

Clip from Fast Times at Ridgemont High (1982): What Jefferson was saying was, hey, you know, we left this era in place because it was bogus. So if we don’t get some cool rules ourselves, pronto, will just be bogus, Tim. Yeah. And

Jason Flores-Williams: I just think it’s like a perfect way just summarized it like most essentially perfect way, the reason why United States has a constitution and our own set of laws in contrast to England from which we divided.

Amy Scott: Because who doesn’t want to be bogus?

Jason Flores-Williams: You’ll be bogus too man.

Amy Scott: But Jason says the cool rules the US government came up with haven’t worked out so well for the environment. So in 2017, he filed a lawsuit against the state of Colorado, on behalf of the Colorado River. I asked him to read a statement he made about the case at the time.

Jason Flores-Williams: We’re bringing this lawsuit to even the odds, corporations today claim rights and powers that routinely overwhelm the efforts of people to protect the environment. Our judicial system recognizes corporations as persons so why shouldn’t it recognize the natural systems upon which we all depend as having rights as well.

Amy Scott: The lawsuit asked a federal court to recognize the right of the Colorado River to quote exist, flourish, regenerate, be restored and naturally evolve. Jason was inspired by what happened in New Zealand, and shortly after in India which granted two rivers living human status. Because the Colorado River couldn’t appear in court, Jason needed to find some plaintiffs to stand in for the river. But it wasn’t easy. Rights of nature is still a pretty radical idea in the United States. So, he finally recruited a controversial environmental group called Deep Green Resistance. longtime listeners may remember them from season one, the lawsuit made a splash, lots of news outlets covered it, there was excitement for a split second.

Jason Flores-Williams: And then invariably what happened. And I should have just expected this was the attorney general of Colorado at the time, sought severe sanctions against me for signing this lawsuit seeking personhood for the river. Everything from the serious monetary sanctions to disbarment.

Amy Scott: The Attorney General’s Office cited multiple issues with the lawsuit claiming it was unconstitutional. And that the plaintiffs didn’t have standing, basically, that they hadn’t shown they had a legitimate injury, and said, if Jason didn’t voluntarily drop the lawsuit, the plaintiffs could face penalties too.

Jason Flores-Williams: So I have an ethical duty to go back and tell people involved that, hey, this could be this, these sanctions could extend to you and then everything just broke apart.

Amy Scott: Jason requested a dismissal of the suit. And just like that, it was over. Were you willing to risk disbarment yourself? I mean, is it really that the plaintiffs backed out? Or were you also a little bit worried about the consequences for yourself?

Jason Flores-Williams: Hell yeah I was worried. I mean I don’t want to be disbarred. And ultimately, and this is ultimately my responsibility, and I completely accept that is that it’s just very difficult to make a stand.

Amy Scott: Rights of nature is a contentious idea, to say the least in the US legal system, property rights and individual freedom reign. And giving nature the same rights as people and corporations, challenges these deep seated values.

Jason Flores-Williams: And there’s a lot of fear. And fear is just a part of the experience in fighting for something new, the unknown.

Amy Scott: Six years later, there are still some in Colorado who are fighting on behalf of rivers and trying a very different approach.

Gary Wockner: In my opinion, this creek is alive. You can hear it, you can see it moving, you can taste it, you can smell it, you can actually smell you know this the smell of what moving water. And so in our opinion it is alive and it has a right to exist.

Amy Scott: Gary Wockner is an environmental activist, scientist and self described river warrior.

Gary Wockner: I grew up on a muddy little river in central Illinois 60 years ago and I’ve just had an fondness for rivers ever since.

Amy Scott: In the 1980s, he moved to Colorado and fell in love with the mountains and wild rivers. He reminds me of a lot of the outdoorsy guys I grew up with in Colorado, wearing a Patagonia parka patched with duct tape and a Topaz earring in one year. Today, Gary is the director of the nonprofit Save the Colorado.

Gary Wockner: Which protects and restores the Colorado River from the source to the sea.

Amy Scott: Gary sees rights of nature as a strategy to protect the river. But today we’re standing on the grassy bank of another waterway, Boulder Creek in the small mountain town of Nederland.

Gary Wockner: Which is the first community in the state of Colorado to designate rights of nature for the local watershed and the creek that flows through town.

Amy Scott: Two years ago, Gary helped the community pass a rights of nature resolution for Boulder Creek, after a mine upstream was accused of polluting the creek with heavy metals.

Gary Wockner: It was a bit of a rallying cry for the community to help speak for the creek and create more rights for the creek so that again, it would have the right to flow and not be polluted.

Amy Scott: Since then he’s helped pass resolutions for waterways in Grand Lake and Ridgeway Colorado. They’re not legally binding, but more of a guiding principle.

Gary Wockner: This is a friendly, gentle, you know, hearts and minds kind of resolution, it would guide how the town would address issues that come before it like development plans, pollution plans, anything like that, or plans to divert new or large amounts of water.

Amy Scott: These non binding resolutions are baby steps, they’re much less contentious than the lawsuit Jason tried to push forward. And that’s intentional, partly because of what happened to Jason and others who have fought for legal rights.

Gary Wockner: And what we’re trying to do is, you know, slowly but surely in a friendly way to bring that concept into the hearts and minds of the people of the state of Colorado in the southwest United States, and then eventually into the legal system.

Thomas Linzey: Yeah, those resolutions are pretty pointless, in our opinion, just to be blunt.

Amy Scott: Thomas Linzey is senior legal counsel for the Center for democratic and environmental rights, a nonprofit organization based in Washington State.

Thomas Linzey: You don’t change the system of law by passing a non-binding resolution that says wouldn’t it be great if we change the system of law, what you do is you change the system of the law by changing the system of law, you actually write a new law that then gets adopted which challenges those other layers of law. That’s how it works.

Amy Scott: Otherwise, he says.

Thomas Linzey: There’s no relevancy. You know, we have chipmunk Appreciation Day non-binding resolutions. You know, people pass non-binding resolutions all the time at the municipal level, and they’re meaningless people forget about them 10 days after they’re passed. I know because I’ve worked on them in the early days.

Amy Scott: Lest you think he’s just cynical. Thomas is the go-to rights of nature guy. He helped write the very first rights of nature law in the world.

Thomas Linzey: Which was passed by a small community in Pennsylvania community of about 7000 People just north west of Philadelphia. And they were concerned about toxic waste dumping in the community that was going to affect not only the people that live there, but also the waterways, the rivers that ran through the the borough of tamakwa.

Amy Scott: He then went on to help Ecuador craft rights of nature language into its constitution and has been involved with 35 municipal and tribal rights of nature laws in this country. Thomas agrees that hearts and minds need to be changed. Seeing nature as equal to and deserving of the same treatment as humans is a fairly new idea in Western culture, let alone the legal system.

Thomas Linzey: I bet you didn’t think we would be talking about Sir Francis Bacon today. But Sir Francis Bacon once said that the goal of Western civilization was to torture nature on a rack to extract her secrets. So you have this Western European concept of nature as a thing, something to be used, like with the Colorado River, for example, the seven states fighting over how much water we’re gonna get from it without allowing the Colorado River to actually be in the room to say this is what I need.

Amy Scott: Thomas says many of these efforts have been led by indigenous communities as in New Zealand, who have a different relationship with nature.

Thomas Linzey: The reason why this work has been so difficult is that Western European vision is what reigns and you’re basically trying to change that by injecting this indigenous wisdom into this European system of law.

Amy Scott: Take what happened in Orange County, Florida a few years ago, after voters approved a charter amendment to establish rights of nature for the area’s wetlands. The amendment passed with overwhelming support 89% of the vote.

Thomas Linzey: So anybody who works on initiatives knows 51% of the vote is almost impossible. But 89% of the vote meant you had Trump folks, you had liberals, you had progressives all coming together to protect these two rivers the Wikiversity Conlogue Hatchie River in Florida.

Amy Scott: The amendment allowed people to file lawsuits on behalf of these waterways, and it pissed a lot of people off. Florida’s Chamber of Commerce warned that adopting this quote, fringe legal theory would set off an avalanche of litigation with dramatic implications for property rights and growth. A few months after it passed some waterways represented by a lawyer sued a developer in the state, claiming that a planned housing development threatened wetlands and streams. But the judge tossed the case out citing a new Florida law that prohibited granting legal rights to any part of the natural environment signed just months before the Orange County vote.

Thomas Linzey: Yeah, so Ron DeSantis, led the way with the legislature in Florida to pass a law pre-empting or attempting to preempt the passage of rights of nature laws at the local level. What’s amazing to me is that it’s been very difficult to even get the major environmental groups in the US to talk about rights of nature, it’s too controversial, too radical for them. Yet, Governor DeSantis knows perfectly well how powerful these rights of nature laws can be, because they’re using legislative oxygen to actually try to cut off the ability of municipalities to pass them.

Amy Scott: It’s exactly this type of messiness that Gary Wockner is hoping to avoid with his gentler strategy. But Thomas says if people are serious about turning rights of nature into law, they have to get more aggressive. And he actually thinks Colorado is in a unique position to get something passed.

Thomas Linzey: Colorado law provides kind of an anti-preemption provision, which says that local laws can be more stringent than state law in certain circumstances. And I think that gives a platform for moving forward not just with Colorado River, but with other ecosystems and rivers in Colorado.

Amy Scott: How would the world look if the Colorado River had a legal right to exist, and to flow and to be clean, and you know, all the things that, that come along with that right?

Thomas Linzey: It would be alive again, the Colorado River is more than just water. It’s it’s the river itself. It’s the tributaries, its life. And if the Colorado River had rights, it would be in the negotiating room with the other states. It’s why Colorado freaked out the state, when the lawsuit was brought back in 2017, to the point of saying, not only does this need to be dismissed, but we need to punish the lawyer that brought it in the first place. Because they understand how powerful it would be if the Colorado had a voice.

Amy Scott: Six years after his attempt to get the Colorado River a shot at being in that negotiating room, Jason Flores-Williams has a few regrets.

Jason Flores-Williams: Looking back on it, my goal was to just give the doctrine footing, you know, maybe just get a line in the dismissal, saying, hey, well, the law is not there yet. But this could be a good fix, and then give somebody else or us the chance to build on that one line.

Amy Scott: The law moves slowly decisions build on prior decisions. And Jason says a line in the dismissal could have given a small foothold to a future case. If you had to redo would you try to see it through at least to try to get that line? In the dismissal?

Jason Flores-Williams: I’ll give you a really honest answer. I’ll give you a really honest answer. Because the easy thing for me to say short, then then try to and then say okay, and blame it on the circumstances. But I have come to the point in the United States where I questioned the purpose of doing anything. I do. I think that in the United States, consumerism and capitalism are just so entrenched. And the dialogue is so inherently stupid. That there’s a sort of utility.

Amy Scott: Jason is based in Mexico City now where he says there’s more willingness to consider rights of nature arguments, and he’s pretty pessimistic about any significant movement happening in the US legal system. But Thomas Linzey disagrees.

Thomas Linzey: The sky’s the limit here. I mean, law changes in all kinds of ways all the time.

Amy Scott: He says he advised Jason back in 2017. And wishes he’d stuck it out.

Thomas Linzey: Lawyers for the civil rights movement were sanctioned all the time, we have to get used to that we have to understand that our law license is a privilege. But there are times when it makes sense to give up that law license for certain reasons for certain times, I think we’re in one of those times. And that means being courageous, we need more people who are willing to stay in there and finish it to the end.

Amy Scott: Coming up-

Jack Fiander: The adults tend to look at you like this is an idea that came to you at midnight when you had tinfoil on your head.

Amy Scott: A tribal lawyer stands up for nature. After the break. Last year, Jack Fiander, a lawyer and a member of the Yakima Nation fought for the rights of nature on behalf of another tribe.

Jack Fiander: I was made an honorary member of the Sauk Suiattle tribe and given the name in their language of Duttwihiatkin, which, unfortunately for me, translates into protector of all that is sacred, which put a heck of an obligation on me to live up to that.

Amy Scott: The Sauk Suiattle tribe filed a lawsuit in tribal court against the city of Seattle. The tribe argued that salmon, which are sacred to the Sauk Suiattle have a right to exist and that the hydro-electric dams on the Skagit River were harming the fish by damaging their habitat and blocking their passage upstream, and in turn harming the tribe.

Jack Fiander: Tribal members rely on salmon for their food. Sometimes they sell some to buy gas from their cars, or their economy. But also it’s a cultural thing because the tribe has a treaty which guaranteed them the right to fish.

Amy Scott: Earlier this year, Seattle settled and agreed to create passages in the river for the salmon. Though it didn’t acknowledge the salmons rights. Jack says the city hasn’t begun building the passages. So he’s not celebrating just yet.

Jack Fiander: Still cautious. Tribal nations are very experience in having promises made to them, which were not kept.

Amy Scott: Jack says he thinks the city settled because the licenses for the dams were up for renewal. At the same time, the tribes lawsuit was getting a lot of press, and Seattle’s reputation was on the line. But Jack is pragmatic. He says the motivation isn’t what really matters.

Jack Fiander: I think the way to convince people that you should support the rights of salmon is to appeal and to and present it to their western views. Not that you’re recognizing the salmon’s rights, but you’re recognizing the salmon rights, because that protects your rights, you protect nature, then you’ll be able to exploit it for over a longer period of time.

Amy Scott: Ouf. It’s pretty depressing. But Jack has been fighting this fight for a long time. We’re focusing this season of our podcast on the Colorado River and drought in the southwest. And I’m wondering if you were trying to protect the Colorado River, you know, which serves seven states, two countries and 30 tribal nations provides water to 40 million people. How would you approach that? Do you think it could work for a whole river basin?

Jack Fiander: Well, oftentimes, I’m inclined to take off my attorney hat and just speak as a tribal elder. Because in that capacity, I’m in time entitled to kind of scold people. And, and I guess I would say, Western water law in the United States has the same problem. We see in the in the rights of nature. Water law in this country is based on taking the water out of the ground, or out of the river or your own use. That’s how you get a water right? By taking that away from nature, and using it yourself. And it’s sort of like rewards that someone who uses water because the earlier you use it and the more you take, the greater your right is.

Amy Scott: It’s known as the doctrine of prior appropriation. It’s a bit like finders keepers.

Jack Fiander: And that’s just wrong. Because it encourages people and cities and governments and agriculture to use more water than they need, because if you don’t use it, someone else gets to use it, and treats the water like property.

Amy Scott: But Jack says attitudes are changing, when he talks to groups about the idea that nature has inherent rights that need protection.

Jack Fiander: The adults tend to look at you like this is an idea that came to you, at midnight, when you had tinfoil on your head, you know, from from outer space, it’s, it’s too new. But what gives me hope is that the young people in the students, unlike the older people, they get it, you know, because arms to nature is something that’s, that’s gonna affect them deeply in their future, and they see it with the climate change. So I guess it’s the young people that give me hope because they really get it.

Amy Scott: After spending months witnessing all the drama over this dwindling resource downstream, the only thing left to do was go see it for myself where it begins. Toward the end of the summer, my husband Alex, and I go for a hike we’ve been wanting to do for a long time to the headwaters of the Colorado River. He’s a landscape photographer, he has been documenting the effects of development and climate change on the Colorado River Basin. For the last decade. We’re in Rocky Mountain National Park. And as soon as we set out from the Colorado River trailhead, nature asserts itself.  All right, well, our first obstacle is a herd of elk blocking or trail. You know, they can be aggressive. So can we just be like, Excuse us? Pardon me? There’s a whole living breathing ecosystem around this river, including this herd of mama elk with their babies.

Alex: We’re totally surrounded by them now.

Amy Scott: What do we do if they charge curl up in a ball?  They don’t charge thankfully, with our heads down, we scurry paths and continue on passing babbling creeks, rocky cliffs, and so many creatures, a pine marten scampering through the forest, a moose with her calf, cute little waddling bird just waddling up the trail until seven miles later finally exhausted. We reach a wet grassy meadow.

Alex: Guess this is it right here.

Amy Scott: We’re about 10,000 feet above sea level surrounded by rocky peaks, and a bluebird sky. Wow. Here it is. We finally reached the headwaters of the Colorado River. How cool. It’s so beautiful. Alex goes over to read a metal sign at the edge of the meadow where water seeps up from the mud where we’re standing.

Alex: In the valley below lies a tiny stream called the Colorado River. It has barely begun its travels. But six miles upstream was that magical point where water begins its downstream journey to the sea. You got to hike six more miles.

Amy Scott: No.

Alex: A course of 1400 miles to the Gulf of California.

Amy Scott: So this marker is sort of standing in for the headwaters, which is really just this whole area, right? That’s like gradually filtering down this valley into the Colorado. to the southwest. We can see the never summer mountains. There’s still some snow on them. It’s kind of amazing to think that the snow that’s up there, a little bit of it. And the snow that was here in the winter and spring behind us behind us. Is some of it reaching all the way to the Gulf of California.

Alex: Well, the problem is none of it reaches the Gulf of California anymore. Or the Sea of Cortez, depending who you’re asking. Right? Yeah, the last bits get used for farming and Mexico. And you know, can’t throw stones most of its used for farming in California and Arizona. So.

Amy Scott: So we need a sharpie to edit the sign. If the river had rights, would it flow all the way to the Gulf again? Would people be forced to rethink how they use water so there might still be enough for future generations, and who would get to speak for the river and decide all these things. It’s kind of an emotional experience being up here. I was born and raised in Colorado, I grew up drinking this water without even really thinking about where it came from. We have messed with this river so much, I can’t help but feel bad for it. Even up here, a lot of the water that would flow into the Colorado is diverted by a ditch built in the 1890s to supply farms and cities to the east. And it’s sad to think about how much strife this river has caused downstream. It’s not the rivers fault. It’s the people’s fault. And now it’s our job as much as we can to fix it.

OUTRO

Amy Scott: That’s it for this season. Thanks for listening and sharing the show. We’ve loved reading your reviews and comments, keep them coming. How We Survive is hosted by me, Amy Scott. Hayley Hershman and I wrote this episode. Our production team also includes Lina Fansa, Courtney Bergsieker and Sophia Paliza-Carre. Help this season from Peter Balanon-Rosen and Marketplace reporter Savannah Maher. Our Senior Producer is Caitlin Esch. Our editor is Jasmine Romero. Sound design and original music by Chris Julin and audio engineering by Brian Allison. Our theme music is by Wonderly. Bridget Bodnar is director of podcasts Francesca Levy is Executive Director. Neal Scarbrough is Vice President & General Manager of Marketplace.