Earth Protect Blog

 

Town joined a national movement when it voted to give its watershed a voice in decisions

By Bruce Finley

The Denver Post

Leaders of the Colorado mountain town Nederland just gave their surrounding 448-square mile watershed “fundamental and inalienable rights,” like those conferred on people and corporations — bolstering a movement that has gained traction amid concerns nature is suffering.

The Nederland resolution, which passed 5-1 on July 6, also directs town trustees to appoint guardians who can speak for nature in local decision-making the way court-appointed guardians speak for children, dementiastricken elders and pop star Britney Spears.

Under current U.S. law, forests, mountains and rivers lack legal rights, let alone standing to be represented in court.

Proponents contend subjugating nature as a commodity, used to satisfy human demands, is leading to disaster as the climate warms and they’re pressing for a new paradigm. But federal and state law can preempt local measures, and property rights groups are girding against what they see as an environmentalist grab for moral high ground.

For now, the focus of the nonbinding resolution in Nederland (population 1,600) is simply to spur deeper conversations about effects of population growth and development — and avoid litigation. Upcoming tests include new construction in the Caribou Ridge subdivision on moose and elk habitat, and a proposed new reservoir along Boulder Creek.

“This may become a national movement. We’re at a very early stage, just getting off the ground with this,” said Nederland trustee Alan Apt, a retired publisher and former Fort Collins councilman who led the local effort. “Human needs are important, and we want to make sure we meet the needs of our human population. But we also need to think about the air, water, wildlife, trees — everything that constitutes nature. It’s a survival issue.”

At a time when studies warn of open space disappearing across the United States at the rate of a football field every 30 seconds, elected leaders in recent years have passed rights of nature ordinances in Santa Monica, Calif.; Toledo, Ohio; Grant Township and Tamaqua, Pa.; Mora County, N.M.; and Orange County, Fla.

The concept has been circulating for decades after emerging a half-century ago in a law professor’s article.

The U.S. Supreme Court in 1972 recognized possible rights of nature in a case addressing a proposed ski resort development in a federal forest, with Justice William Douglas declaring in a dissent that “public concern for protecting nature’s ecological equilibrium … should lead to the conferring of standing upon environment objects to sue for their own preservation.”

The United Nations Convention on Biological Diversity, an international treaty, urges leaders worldwide “to consider and recognize when appropriate the rights of nature.” The Yurok tribe in California in 2019 gave rights to the Klamath River, and the Nez Perce did so with the Snake River last year. Nature’s rights are enshrined in Ecuador’s constitution, and Bangladesh in 2019 gave rivers the same legal rights as humans.

Crestone in 2018 became Colorado’s first town to pass general rights-of-nature legislation, part of a push for official certification as a dark skies community that controls light pollution.

Nederland is the first municipality in the Rocky Mountain West to pass a measure specifically designating a watershed, reflecting water’s essential ecological role and recent river-protection court wins in Colombia and New Zealand based on inherent rights of nature.

Organizations leading the movement — the nonprofit Save the Colorado River in Colorado and California-based Earth Law — say legal rights for nature to exist, flourish and be restored will guide local government decisions, from proposals to build new houses and roads to routing of new pipelines to siphoning of water that humans demand.

They’re pushing elected officials to adopt similar non-binding resolutions in Boulder, Durango, Fort Collins, Lyons, Denver, Steamboat Springs, Eagle, Vail, Buena Vista and Salida.

“The purpose is to give nature a direct voice in government. Nature has never had a voice in a formal legal sense,” Earth Law Executive Director Grant Wilson said. “Nederland has planted the seed to recognize rivers and watersheds as being living entities with their own rights in Colorado and the Rocky Mountains.”

Questioning impacts, causing conflict

Starting discussions, not legal war, is the goal, Save the Colorado director Gary Wockner said, although he acknowledged a desire for state lawmakers to grant local governments the power to protect nature in their areas.

“You go up to Ned, walk down to the creek and say: ‘What does it mean that the creek and watershed have legal rights?’ And you have a conversation with whoever you’re with,” he said. “We would call that success.”

But fights have begun. This year environmental groups filed a lawsuit to enforce the Orlando, Fla.-area ordinance that passed in November 2020 declaring rights of waterways and block a 1,900acre housing development that could restrict flows through 115 acres of marshes and streams. State lawmakers have intervened to try to prevent future rights-of nature measures, and activists are collecting signatures for a statewide ballot measure.

As property rights advocates see it, Nederland’s “feel-good pro-environment resolution” is expected, serving as a “mission statement” for liberals, according to attorney David McDonald at the Mountain States Legal Foundation, a nonprofit group that champions individual freedom in the West.

“The sky isn’t falling right now, but those who support property rights need to be aware of this. Streams don’t have rights,” he said. “Rights, as I understand them, belong to people, not to artifacts within the environment or natural wonders. It’s important that those defending property rights not cede moral high ground to people who would speak for trees.”

The problem can be seen in Spears’ struggle to break free from her father, who was appointed by a court in 2008 to serve as her guardian, McDonald said. Guardians tend to have conflicts of interest. “So what are the real interests of nature? Talk to any three activists, they give you three different answers.”

Developer’s view

Denver developer Rhys Duggan said legal rights for nature “sounds potentially scary” and “could have the ability to stymie” new development on open terrain.

He has proposed an eight-figure investment to restore a one-mile stretch of the South Platte River near new high-density housing, putting his project “on the right side” of nature. “There are ways to do even high-density development and protect, if not augment nature,” he said.

In Boulder, local advocate Steve Jones has been pressing the city council for years to adopt a measure.

“If we had an ordinance in place, before officials took an action — a dam, water diversion, a new trail bisecting critical wildlife habitat — they’d need to do a thorough review,” and if species were threatened, he said, “we’d take them to court.”

If municipal leaders around Colorado balk, a statewide ballot initiative could get results, Jones said.

Colorado voters’ track record on environment-oriented ballot measures, most recently ordering state officials to reintroduce wolves, has opened this as a possibility for establishing legal rights of nature.

“Young people here in Denver and across the state are talking about it,” GreenLatinos and Sunrise Movement leader Ean Tafoya said. “If corporations have personhood rights, why shouldn’t the natural world?”

“And I’ve heard conversations about ‘going the ballot route,’ ” he said. “People are so tired of going through city council.”

Bruce Finley: 303-954-1700, This email address is being protected from spambots. You need JavaScript enabled to view it. or @finleybruce