Editor’s note: This is the latest installment from Will Falk as he follows the Colorado River from headwaters to delta, before heading to court to argue for the Colorado River to be recognized as having inherent rights. More details on the lawsuit are here. The index of dispatches is here.
When I agreed to serve as a “next friend” to the Colorado River in a first-ever federal lawsuit seeking personhood and rights of nature for the river, I agreed to represent the river’s interests in court. On a general level, it’s not difficult to conceptualize the Colorado River’s interests: pollution kills the river’s inhabitants, climate change threatens the snowpack that provides much of the river’s water, and dams prevent the river from flowing to the sea in the Gulf of California.
We seek personhood for the Colorado River, however, and this entails personal relationship with her. Water is one of Life’s first vernaculars and the Colorado River speaks an ancient dialect. Snowpack murmurs in the melting sun. Rare desert rain runs off willow branches to ring across lazy pools. Streams running over dappled stones sing treble while distant falls take the bass.
Personal relationship requires that you learn who the other is. Our first day in court is scheduled for Tuesday, November 14, at 10 AM [you’re invited to attend]. So, I will spend the next few weeks leading up to the court date traveling with the river, sleeping on her banks, and listening. I will ask the Colorado River who she is, and then, if she’ll tell me, I’ll ask her what she needs.
When I arrive at the United States District Court in Denver, I hope to bring the Colorado River’s answer.
(I’ll post notes from the road. And, I’m excited to be meeting up with the brilliant photographer Michelle McCarron soon.)
The Rights of Nature movement has arrived in the United States! On September 25, Deep Green Resistance, with noted civil rights attorney Jason Flores-Williams, filed a first-in-the-nation lawsuit – Colorado River v. Colorado – seeking personhood for the Colorado River and recognition of the river’s rights to exist, flourish, regenerate, and naturally evolve in the United States District Court, District of Denver. While courts in India, New Zealand, and Ecuador have granted rights to ecosytems, this lawsuit represents the first Rights of Nature action ever brought before a federal court. If the case succeeds, the natural world will gain a powerful new tool in the struggle to stop corporate exploitation.
We invite everyone who loves the Colorado River and the natural world who gives us life to pack the courthouse with us. We want to send a strong message to the judge, the State of Colorado, and the nation that it’s time the American legal system honor the Rights of Nature. The first hearing in the case has been scheduled for Tuesday, November 14 at 10 AM (mountain):
Magistrate Judge Nina Y. Wang
Byron G. Rogers Courthouse C253
1929 Stout Street
Denver, CO 80294
This moment presents an opportunity to change the future of American environmental law while securing a foothold for the Rights of Nature movement in this country. Please join us in Denver to defend the Colorado River.
Featured image: The 2015 Gold King Mine waste water spill in the Animas River, in southwest Colorado. The Animas is a tributary to the Colorado River.
Editor’s note: The first Rights of Nature lawsuit in the US was filed on September 25, 2017, in Denver, Colorado. The full text of the complaint can be found here.
“Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.” Supreme Court Justice William O. Douglas, Sierra Club v. Morton (1972)
Denver, Colorado–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 lawsuit, filed against the Governor of Colorado, seeks a recognition that the State of Colorado can be held liable for violating those rights held by the River.
The Plaintiff in the lawsuit is the Colorado River itself, with the organization Deep Green Resistance – an international organization committed to protecting the planet through direct action – filing as a “next friend” on behalf of the River. The River and the organization are represented in the lawsuit by Jason Flores Williams, a noted civil rights lawyer and lead attorney in a recent class-action case filed on behalf of Denver’s homeless population.
While this is the first action brought in the United States which seeks such recognition for an ecosystem, such actions and laws are becoming more common in other countries. In 2008, the country of Ecuador adopted the world’s first national constitution which recognized rights for ecosystems and nature; over three dozen U.S. municipalities, including the City of Pittsburgh, have adopted similar laws; and courts in India and Colombia have recently recognized that rivers, glaciers, and other ecosystems may be treated as “persons” under those legal systems.
Serving as an advisor to the lawsuit is the Community Environmental Legal Defense Fund (CELDF), a nonprofit public interest law firm which has previously assisted U.S. municipalities and the Ecuadorian government to codify legally enforceable rights for ecosystems and nature into law.
Attorney Flores-Williams explained that “current environmental law is simply incapable of stopping the widescale environmental destruction that we’re experiencing. 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? I believe that future generations will look back at this lawsuit as the first wave of a series of efforts to free nature and our communities from a system of law which currently guarantees their destruction.”
Deanna Meyer, a member of Deep Green Resistance and one of the “next friends” in the lawsuit, affirmed Flores-Williams’ sentiments, declaring that “without the recognition that the Colorado River possesses certain rights of its own, it will always be subject to widescale exploitation without any real consequences. I’m proud to stand with the other “next friends” in this lawsuit to enforce and defend the rights of the Colorado, and we’re calling on groups across the country to do the same to protect the last remaining wild places in this country and beyond.”
The lawsuit seeks recognition by the Court that the Colorado River Ecosystem possesses the rights to exist, flourish, regenerate, and restoration, and to recognize that the State of Colorado may be held liable for violating those rights in a future action. The complaint will be filed in the US District Court of Colorado on Tuesday.
Featured image: Lake Powell, photographed April 12, 2017. The white ‘bathtub ring’ at the cliff base indicates how much higher the lake reached at its peak, nearly 100 feet above the current level. Patti Weeks
The nation’s two largest reservoirs, Lake Mead on the Arizona/Nevada border and Lake Powell on the Arizona/Utah border, were brim full in the year 2000. Four short years later, they had lost enough water to supply California its legally apportioned share of Colorado River water for more than five years. Now, 17 years later, they still have not recovered.
This ongoing, unprecedented event threatens water supplies to Los Angeles, San Diego, Phoenix, Tucson, Denver, Salt Lake City, Albuquerque and some of the most productive agricultural lands anywhere in the world. It is critical to understand what is causing it so water managers can make realistic water use and conservation plans.
While overuse has played a part, a significant portion of the reservoir decline is due to an ongoing drought, which started in 2000 and has led to substantial reductions in river flows. Most droughts are caused by a lack of precipitation. However, our published research shows that about one-third of the flow decline was likely due to higher temperatures in the Colorado River’s Upper Basin, which result from climate change.
This distinction matters because climate change is causing long-term warming that will continue for centuries. As the current “hot drought” shows, climate change-induced warming has the potential to make all droughts more serious, turning what would have been modest droughts into severe ones, and severe ones into unprecedented ones.
The Colorado River is about 1,400 miles long and flows through seven U.S. states and into Mexico. The Upper Colorado River Basin supplies approximately 90 percent of the water for the entire basin. It originates as rain and snow in the Rocky and Wasatch mountains. USGS
How climate change reduces river flow
In our study, we found the period from 2000 to 2014 is the worst 15-year drought since 1906, when official flow measurements began. During these years, annual flows in the Colorado River averaged 19 percent below the 20th-century average.
During a similar 15-year drought in the 1950s, annual flows declined by 18 percent. But during that drought, the region was drier: rainfall decreased by about 6 percent, compared to 4.5 percent between 2000 and 2014. Why, then, is the recent drought the most severe on record?
The answer is simple: higher temperatures. From 2000 to 2014, temperatures in the Upper Basin, where most of the runoff that feeds the Colorado River is produced, were 1.6 degrees Fahrenheit higher than the 20th-century average. This is why we call this event a hot drought. High temperatures continued in 2015 and 2016, as did less-than-average flows. Runoff in 2017 is expected to be above average, but this will only modestly improve reservoir volumes.
High temperatures affect river levels in many ways. Coupled with earlier snow melt, they lead to a longer growing season, which means more days of water demand from plants. Higher temperatures also increase daily plant water use and evaporation from water bodies and soils. In sum, as it warms, the atmosphere draws more water, up to 4 percent more per degree Fahrenheit from all available sources, so less water flows into the river. These findings also apply to all semi-arid rivers in the American Southwest, especially the Rio Grande.
The combined contents of the nation’s two largest reservoirs, Lake Mead and Lake Powell, since their initial fillings. The large decline since 2000 is shaded brown for 2000-2014, our 15-year study period, and pink for the continuing drought in 2015-2016. The loss was significantly influenced by record-setting temperatures, unlike a similar 15-year drought in the 1950s which was driven by a lack of precipitation. Bradley Udall, Author provided
A hotter, drier future
Knowing the relationship between warming and river flow, we can project how the Colorado will be affected by future climate change. Temperature projections from climate models are robust scientific findings based on well-tested physics. In the Colorado River Basin, temperatures are projected to warm by 5°F, compared to the 20th-century average, by midcentury in scenarios that assume either modest or high greenhouse gas emissions. By the end of this century, the region would be 9.5°F warmer if global greenhouse gas emissions are not reduced.
Using simple but strong relationships derived from hydrology models, which were buttressed by observations, we and our colleagues calculated how river flows are affected by higher temperatures. We found that Colorado River flows decline by about 4 percent per degree Fahrenheit increase, which is roughly the same amount as the increased atmospheric water vapor holding capacity discussed above. Thus, warming could reduce water flow in the Colorado by 20 percent or more below the 20th-century average by midcentury, and by as much as 40 percent by the end of the century. Emission reductions could ease the magnitude of warming by 2100 from 9.5°F to 6.5°F, which would reduce river flow by approximately 25 percent.
Large precipitation increases could counteract the declines that these all-but-certain future temperature increases will cause. But for that to happen, precipitation would have to increase by an average of 8 percent at midcentury and 15 percent by 2100.
The American Canal carries water from the Colorado River to farms in California’s Imperial Valley. Adam Dubrowa, FEMA/Wikipedia
On a year-in, year-out basis, these large increases would be substantial. The largest decade-long increases in precipitation in the 20th century were 8 percent. When such an increase occurred over 10 years in the Colorado Basin in the 1980s, it caused large-scale flooding that threatened the structural stability of Glen Canyon Dam, due to a spillway failure not unlike the recent collapse at California’s Oroville Dam.
For several reasons, we think these large precipitation increases will not occur. The Colorado River Basin and other areas around the globe at essentially the same latitudes, such as the Mediterranean region and areas of Chile, South Africa and Australia, are especially at risk for drying because they lie immediately poleward of the planet’s major deserts. These deserts are projected to stretch polewards as the climate warms. In the Colorado River basin, dry areas to the south are expected to encroach on some of the basin’s most productive snow and runoff areas.
Moreover, climate models do not agree on whether future precipitation in the Colorado Basin will increase or decrease, let alone by how much. Rain gauge measurements indicate that there has not been any significant long-term change in precipitation in the Upper Basin of the Colorado since 1896, which makes substantial increases in the future even more doubtful.
Megadroughts, which last anywhere from 20 to 50 years or more, provide yet another reason to avoid putting too much faith in precipitation increases. We know from tree-ring studies going back to A.D. 800 that megadroughts have occurred previously in the basin.
March of 2017 was the warmest March in Colorado history, with temperatures a stunning 8.8°F above normal. Snowpack and expected runoff declined substantially in the face of this record warmth. Clearly, climate change in the Colorado River Basin is here, it is serious and it requires multiple responses.
It takes years to implement new water agreements, so states, cities and major water users should start to plan now for significant temperature-induced flow declines. With the Southwest’s ample renewable energy resources and low costs for producing solar power, we can also lead the way in reducing greenhouse gas emissions, inducing other regions to do the same. Failing to act on climate change means accepting the very high risk that the Colorado River Basin will continue to dry up into the future.
A windmill blade knocks the head off a Cooper’s hawk interrupting the late afternoon peace in Spring Valley, just outside Ely, Nevada.
The blade tosses the hawk’s body onto yellow gravel the power company spread, over living soil, in circles around their windmills.
The ever-present Great Basin breeze, who usually whispers with a soothing tone through pinyon needles, juniper branches, and sage tops, becomes angry. Grazing cows pause their chewing and look up to consider the scene.
Heads of cheat grass poke through the gravel, only to droop with sorrow for the splayed feathers and twisted wings at their feet. Taller than cheat grass and crowding around the gravel’s edge, crested wheatgrass shakes and shutters with horror in the wind.
The collision’s suddenness and the sickening sound of the blade striking the hawk’s small skull breaks my awareness open with a pop. I seep across the valley floor. I mingle with the wounds on the land and recognize pain in places I previously overlooked. The windmills, the invasive plants, the cows, and the empty scars on the foothills marking pinyon-juniper clearcuts are all evidence of violence.
The gravel at my feet is the remains of stones and boulders that were exploded and crushed, loaded into trucks, and transported to Spring Valley as part of Pattern Energy’s Spring Valley Wind Farm project. Windmill construction means so much involves land clearances, building maintenance roads, and operation of fossil-fuel intensive heavy machinery.
Before the gravel was dumped and the construction project started, the ground I stand on was covered in a complex mosaic of lichens, mosses, microfungi, green algae, and cyanobacteria that biologists call a “biological soil crust.”
Across the Great Basin, biological soil crusts are integral to protecting soil surfaces from erosion. They are also vulnerable to disturbance by construction projects like the one that brought the windmills here. The lichen components of these disturbed crusts can take 245 years to recover. Far worse, soil losses due to erosion following mechanical disturbances can take 5,000 to 10,000 years to naturally reform in arid regions.
The windmills that tower above me fill the air with a buzzing, mechanical sound. Built only four miles from a colony of millions of Mexican free-tailed bats at the Rose Guano Cave, the windmills killed 533 bats in 2013, triple the amount allowed by federal regulations. The majority of these bats are killed by barotrauma. Rapid or excessive air pressure change, produced by windmills, causes internal hemorrhaging. In less abstract language, the bats’ lungs explode.
Both cheatgrass and crested wheatgrass are invasive species. Global shipping routes, which have long been tools of colonialism, brought cheatgrass to North America through contaminated grain seed, straw packing material, and soil used as ballast in ships. Cheatgrass outcompetes native grasses for water and nutrients. It drops seeds in early summer before native grasses and then drys out to become highly flammable.
When wildfires rip through areas cheatgrass has invaded, native grasses are destroyed without seeding. In the fall, after native grasses have burned, cheatgrass seeds germinate and cheatgrass dominance expands. This dominance has been disastrous for the Great Basin. Fire return intervals have gone from between 60-110 years in sagebrush-dominated systems to less than 5 years under cheatgrass dominance.
While cheatgrass was imported by accident, crested wheatgrass was imported from Asia in 1898. By the 1890s, Great Basin rangelands were depleted of water, soil, and economically useful vegetation. Ranchers needed cheap feed for their livestock and crested wheatgrass provided it. It outcompetes native grasses, grows in tight bunches that choke out other species, quickly forms a monoculture, and reduces the variety of plant and wildlife species in places it takes hold. Worst of all, crested wheatgrass supports a destructive ranching industry that should have collapsed decades ago.
Ranching is one of the most ecologically destructive activities in the Great Basin. Livestock grazing depletes water supplies, causes soil erosion, and eliminates the countless trillions of small plants forming the base of the complex food web supporting all life in the region. Ranchers have nearly killed off all the top carnivores on western rangelands and jealously guard their animals against the re-introduction of “unacceptable species” like grizzly bears and wolves.
Ranchers, always searching for new rangeland, encourage government agencies like the Bureau of Land Management (BLM) and the US Forest Service (USFS) to clear-cut forests and remove sagebrush to encourage the growth of graze for their livestock. In the hills north of the wind farm, pinyon pines and junipers lie in mangled piles where they were “chained.”
Chaining is the preferred method for destroying forests here. To chain a forest is to stretch a US Navy battleship anchor chain between two crawler tractors which are then driven parallel to each other while ripping up every living thing in their path.
Ship chain used to clear forests. Photo: Wikimedia Commons
Nevada Highway 893 runs to my left along the west side of the valley. If I followed the road north a few miles, I would run into one of the Southern Nevada Water Authority’s (SNWA) test wells. SNWA installed these wells in the preparation of its Clark, Lincoln, and White Pine Counties Groundwater Development Project that would drain Spring Valley of water and, then, transport the water by pipeline to support Las Vegas’ growing population.
Fortunately, the project has been successfully stalled in court by determined grassroots activists. But, if SNWA eventually prevails, Spring Valley will quickly dry up and little life, endemic or invasive, will survive here.
***
The reminders of violence I encounter in Spring Valley reflect global problems. Windmills are a symptom of the dominant culture’s addiction to energy. The roads here will carry you to highways, highways to interstates, and interstates to airports.
There is virtually nowhere left on Earth that is inaccessible to humans with the privilege, power, and desire to go wherever they will. To gain this accessibility, these humans are so thoroughly poisoning the atmosphere with greenhouse gas emissions global temperatures are rising.
Invasive species – cows, cheat grass, crested wheatgrass, European settlers – are colonizers. They each colonize in their own way. The cows replace elk, pronghorn, wolves, and bears. The grasses eliminate natives by hoarding nutrients and water. They reproduce unsustainably and establish monocultures. When that doesn’t work, they burn the natives out. And, the settlers do the same.
The violence of civilized life becomes too obvious to ignore and the land’s pain threatens to overwhelm me. Despair accompanies these moments. When all I see is violence, it is easy to conclude that violence is all there is, all there ever was, and all there ever will be. Claims I’ve heard repeated countless times echo through my mind.
Humans are selfish. This is just what we do. We will kill ourselves, but the planet will recover…eventually. Humans have been butchering each other for centuries and we’ll butcher each other for centuries more if we don’t destroy the world first.
I stand paralyzed under a windmill, with a decapitated hawk at my feet, struggling through my thoughts for who knows how long, when the blue feathers of a pinyon jay catch my eye. At first, it’s the simple beauty of her color that attracts my attention. But, it’s the strangeness of the phenomenon that keeps my attention.
Rows of windmills form the wind farm. I stand under the northernmost row and about one hundred yards separate the rows. The jay lands on a barbed wire fence post about halfway between the row I’m standing under and the first row south of me. Her presence is strange for two reasons. First, pinyon jays prefer to live in pinyon-juniper forests and there are no trees for a mile in either direction. Second, pinyon jays are very intelligent, and she must have known that to brave the circling windmill blades is to brave the same death the Cooper’s hawk just experienced or the barotrauma so many bats experience.
The despair I felt a few moments ago is fading. As I approach the jay I see her picking through a pinyon pine cone. She picks deftly at it before she pulls a pine nut from the brown folds of the cone. It’s not until she lifts her head, with the pine nut in her beak, that I understand.
She flew down from the forests, through dangerous windmill blades, to show me a pine nut.
Pinion Jay – Photo: Wikimedia Commons
***
Pine nuts represent the friendship humans and pinyon-juniper forests have shared for thousands of years. Pinyon charcoal and seed coats have been found in the 6,000-year-old Gatecliff Shelter in central Nevada. Pinyon seed coats have been found with 3,000-year-old artifacts in Hogup Cave in northwestern Utah. Many of the Fremont culture’s ruins (circa 1000 AD) in eastern Utah also show pinyon use.
Pine nuts are symbols of true sustainability. I’ve heard many traditional, indigenous people explain that sustainability requires making decisions with the succeeding seven generations in mind. When the health of the seventh future generation guides your relationship with the land, overpopulation, drawdown, pollution, and most forms of extraction become unthinkable. European settlers arrived to find indigenous peoples in the Great Basin, like so many indigenous peoples around the world, living in cultures that existed for centuries in balance with the land.
And, the pine nut made these cultures possible.
The Washoe, Paiute, and Shoshone all developed cultures centered on pine nuts. Pinyon pine expert, Ronald Lanner notes, “Just as life on the plains was fitted to the habits of the buffalo, life in the Great Basin was fitted to the homely, thin-shelled nut of the singleleaf pinyon.” Pinyons give their nuts freely and harvesting them involves no damage to the trees. In fact, pine nuts are seeds. Animals who collect and gather the seeds – like pinyon jays, rats, mice, and humans – help the trees reproduce.
It’s a beautiful relationship: pinyon pines offer animals food, and animals offer pinyon pines regeneration. At a time when the survival of life on Earth depends upon humans embracing their role as animals, the relationship the Washoe, Paiute, and Shoshone built with pinyon pines serves as a model for the world.
Relying on the research of American Museum of Natural History archaeologist David Hurst Thomas, Lanner describes the central role the annual pinyon festival played in Western Shoshone life. He writes, “…when pinyon harvest time arrived, Shoshone bands would come together at a prearranged site. There they would harvest nuts, conduct communal rabbit drives, and hold an annual festival. The pinyon festival was the social highlight of the year and was often attended by several hundred people. At night…there was dancing…There was gambling among men and courting among the young. Marriages were arranged and sexual liaisons conducted.”
Pine nut crops, like all natural processes, are subject to variation. There are good yields and bad yields. Human cultures dependent on the land are constantly confronted with a choice. Either humans can tighten their belts and reduce their populations voluntarily. Or, they can exploit the land, stealing resources from the future to meet the needs of the present.
Lanner describes how Western Shoshone sustainability was maintained, “…the pinyon festival was used as an opportunity for regulating the future size and distribution of Shoshone populations. If at the festival the intelligence from all areas foretold a failure of next year’s crop, then measures could be taken to avoid mass starvation…Births could be limited by sexual abstinence or abortion. One or more twins could be killed at birth, as could illegitimate children…The sick and the old could be abandoned. A widow might be killed and buried beside her husband.”
Some of these measures may seem harsh to us today. But, when we consider the violence necessary to sustain today’s civilized, human populations, we will realize that some of these difficult decisions are what true sustainability looks like. Killing a twin or abandoning the sick is small violence compared to the mass violence of deforestation, anthropogenic desertification, and climate change.
***
The pinyon jay in Spring Valley shows me both a pine nut and the history of human sustainability. Even though Spring Valley, with the rest of the world, currently reflects too much human violence, the vast majority of human history reflects true sustainability. Modern humans have existed for 200,000 years. For the vast majority of that time, most of us lived in cultures similar to the Western Shoshone. We must not forget where we come from.
Meanwhile, ecological collapse intensifies. Violence against the natural world is so pervasive it must be considered a war. Perceiving this war hurts. The pain offers us two choices: endurance or cure. Either the pain is inevitable, an unavoidable fact of life that must be endured. Or, the cause of the pain can be treated and healed.
The pervasiveness of violence tempts us to conclude that it is inevitable. When everywhere we look, we are met with human destruction, it is easy to believe that humans are inherently destructive. This is one reason why the dominant culture destroys the natural world so zealously. If violence is inevitable, there is no reason to stop it.
This is also why the dominant culture works to destroy those non-humans we’ve formed ancient friendships with. If the dominant culture eradicates bison, it destroys our memory of how to live sustainably on the Great Plains. If the dominant culture eradicates salmon, it destroys our memory of how to live sustainably in the Pacific Northwest. If the dominant culture eradicates pinyon-juniper forests, it destroys our memory of how to live sustainably in the Great Basin.
There is a war being waged on the natural world and wars are fought with weapons. The pinyon jay brings me a weapon against the despair I feel recognizing pervasive violence in Spring Valley. She shows me that the violence is not inevitable. She shows me the path to true sustainability, and in doing so, shows me the path to peace.
To learn more about the effort to protect pinyon-juniper forests, go to Pinyon Juniper Alliance. You can contact the Alliance here.
It takes years to implement new water agreements, so states, cities and major water users should start to plan now for significant temperature-induced flow declines. With the Southwest’s ample renewable energy resources and 
