Billboard:
Austin Carter: Hey Ariel
Ariel Lavery: Hello!
[bouncy music starts]
Austin Carter: So have you ever heard the legend of “the Tree That Owns Itself?”
Ariel Lavery: Hmmm… I can’t say I’ve heard that one.
Austin Carter: So the story goes that in the early 1800s, this man in Athens, Georgia, had such fond memories of a particular tree on his property that in order to protect it from ever being cut down, he deeded ownership of the tree and the eight feet surrounding the tree, to itself.
Ariel Lavery: [laughs] That’s ingenious! But you called it a legend, so does that mean this could just be a story?
Austin Carter: Well that’s a little bit debatable. No one has the actual deed, and technically the tree didn’t have the ability to receive the deed. But nonetheless, the tree stood until 1942 when it fell.
Ariel Lavery: Well that’s sad.
Austin Carter: But, they took an acorn from the original tree, and planted it at the same spot, and now it’s called “The Son of the Tree That Owns Itself.”
Ariel Lavery: [laughs] Well that’s a lovely way for the tree to live on, at least genetically. Why are we talking about a tree owning itself anyway?
Austin Carter: Well, I want us to start thinking about whether nature — trees, mountains, rivers etc. — have any rights. Or even more specifically, if they deserve any rights that would provide them protection and help to prevent their own destruction or misuse?
Ariel Lavery: Yeah, ok, that’s an interesting thing to think about. As someone who loves spending time outdoors, I have a lot of respect for those things and definitely think they need certain protections.
Austin Carter: Well, there is a particular river in the United States which has been the subject of a lot of debate. And I talked to a couple of people who are invested in its future.
Jason Flores-Williams: When I look at something like the Colorado River, and the things that we do to ensure sustainability, what I’m thinking about is humanity, just as much if not more, we've got to work it out where the relationship is symbiotic rather than parasitic.
Amelia Flores: It ties back to our origins and our Creator, Matavilya. And, you know, how He provided the river for the Mojave people, and all the people that live along the Colorado River, you know, how to sustain us, He gave us the land, and He gave us, you know, the river, and all of the resources to live off and to be stewards.
Austin Carter: We heard the voices there of Jason Flores-Williams and Amelia Flores, no relation, who we’ll hear from later but there is an important idea that we’ll talk about throughout this episode. It’s the legal concept of “standing.” Jason is a lawyer and brings up this issue.
Jason Flores-Williams: You’ve got to have standing to be in court, and the problem with the Colorado River and other natural resources that are being depleted and destroyed, is that they have no standing.
Ariel Lavery: What does that mean? Standing?
Austin Carter: We’re going to answer that question and ask some bigger questions like, does nature have rights? How are they obtained or recognized? And who can provide leadership and perspective on these issues? [folksy theme music fades in] This season we’re focused on America’s rivers and what lies beneath their surface.
Ariel Lavery: I’m Ariel Lavery
Austin Carter: And I’m Austin Carter. Today’s episode: Standing for Rivers.
Ariel Lavery: On Middle of Everywhere, telling big stories from the small places we call home.
[them music fades out]
Scene 1: Origins of Personhood
Austin Carter: So, Ariel, there are a couple of big moments in the history of this idea that nature can have rights. One of them is the publication of an essay called “Should Trees Have Standing?,” in 1972, by a professor named Christopher Stone. He had taken notice of a case for a few years where Walt Disney Productions was planning to build a massive ski resort in the Mineral King Valley, in the Sierra Nevada Mountains in California. This is him explaining the case on a video from the USC Gould School of Law.
Christopher Stone: The Sierra Club challenged the permit, permitting this to go on. And the case went up to the 9th circuit and the forest service said, look you don’t have standing, you the Sierra Club don’t have standing. Maybe this is a wrong to issue the permit but you’re not injured, you as a club are not injured. When I saw that case, I thought this is in a way sort of silly. This is an important decision as to whether to develop the Mineral King Valley in this way. I’m not sure how it should come out, but at least it should be heard. And if the problem of its being heard is that this club suffered no injury, why not just say “look, the injury is suffered by Mineral King Valley?”
Ariel Lavery: OK, so what’s the connection between the essay “Should Trees Have Standing” and the injury suffered by the Mineral King Valley?
Austin Carter: It’s important to know that put simply, “standing” is the ability to show injury in court. And “injury” can be any harm enacted on a person. But, in the law, Mineral King Valley did not have standing, as it is not a person and cannot show injury, which is why the Sierra Club was the plaintiff. And the essay “Should Trees Have Standing,” was really a piece of legal philosophy at the time. It asked the question, “shouldn’t these natural entities be able to be recognized in court on their own based on the potential damage done by development?”
Ariel Lavery: Ok, so the 9th Circuit declared that Sierra Club did not have standing so how could the Mineral King Valley have any kind of protection in this fight?
Austin Carter: It couldn’t! The Sierra Club appealed the case and it went all the way to the Supreme Court. And the Supreme Court sided with the 9th Circuit ruling, saying that the Sierra Club doesn’t have standing.
Christopher Stone: But Justice Douglas in his dissent, said but why not just essentially follow Stone’s position and let the Mineral King be the plaintiff? It should be called Mineral King against the Department of the Interior.
Austin Carter: And so the legal concept of environmental personhood was born. And though Sierra Club lost the case, Disney ultimately gave up plans to build there because of all of the roadblocks created by the litigation. [acoustic guitar music fades in] But, decades later, far from the USA, this legal concept finally sees its manifestation as the resolution to a 150-year-long legal dispute.
Ariel Lavery: Well, that’s an incredibly long time! Where was this?
Austin Carter: The Maori people of the Whanganui River in New Zealand have a deep spiritual connection to the river which they call “Te Awa Tupua.” The Whanganui Iwi, or tribe, have a saying that means, “The great river flows from the mountains to the sea. I am the river, the river is me.” They consider themselves indivisibly tied to the river. But under the law of the Crown government of New Zealand, their relationship to their ancestral river had been jeopardized since the 1800s. Colonial concepts of property, ownership, legal standing and “progress,” stripped them of their traditional involvement and interactions with the river. But after 150 years of legal complaints and negotiations, in 2017, the parliament of New Zealand passed a law recognizing the “personhood” of Te Awa Tupua. This is Member of Parliament and Cabinet minister at the time, Chris Finlayson, from New Zealand Parliament TV.
Chris Finlayson: The river is going to be recognized in law as Te Awa Tupua, an indivisible and living whole from the mountains to the sea, incorporating its tributaries, and all its physical and metaphysical elements, the Crown will no longer own the riverbed, but the crown will still have a role to play. And we have developed this concept of the role of Te Pou Tupua, where both the crown and Iwi will appoint two guardians, and that will be the face of Te Awa Tupua and will symbolize our partnership through the treaty.
Ariel Lavery: That’s so cool. I love the idea that there is a face of the river. Someone to give a voice to its needs.
Austin Carter: I know, it’s an amazing concept. And it was a major step for the government of New Zealand as a Maori MP named Kelvin Davis explained.
Kelvin Davis: I think this is the third time and it's about time and it needs to happen more, that the Maori worldview has basically been legitimized in legislation…. So we've come a long way since that time when we were ridiculed for actually putting our point of view forward.
Austin Carter: Another Maori member of Parliament, Metiria Turei, echoed Davis’ point about embracing the Maori tikanga, their customs and practices.
Metiria Turei: It is absolutely about time, that the law caught up with our tikanga and it has been our tikanga forever. [slow gentle guitar music fades in] That our environment is entitled to its own integrity is entitled to be protected and restored from damage and injury for its own sake, that it belongs …that our environment and whatever however we want to describe it is our ancestor and from which we come and therefore we owe our environment, everything. Our life, our existence, our future.
Ariel Lavery: That’s really amazing, after all that time, for the government of New Zealand to finally begin to embrace a Maori worldview and adapt it to fit within a Western/governmental legal system.
Austin Carter: Yeah. On one hand it is so simple to think that our environment has a right to exist without harmful exploitation, and at the same time it is completely revolutionary. Next, I’ll introduce you to someone who tried to make that idea a reality in the U.S.
[music fades out]
Scene 2: A Case for Personhood
Jason Flores-Williams: I'm a busy attorney, but I prioritize reading. Like, every Saturday I go to the library and I check out books that I read throughout the week and I'm disappointed if I can't read for at least one hour a night.
Ariel Lavery: OK, so who is this overachiever?
Austin Carter: [laughs] This is Jason Flores-Williams, he’s an attorney in Colorado.
Jason Flores-Williams: I went to the public library and, you know, always being aware about the damage that occurs, damage is occurring right now in our environment to our planet. I checked out a bunch of books about current environmental thinking. And in one of the books that I picked up was this idea of the rights of nature so I think that's a good way to characterize the rights of nature because people — you say personhood, it opens you up to a lot of different you know, “how's that a person? “Is a cockroach in person?” – all the ridiculous things that are coming your way. So I read about it, that was the genesis of it.
Austin Carter: And he was reading about environmental personhood around the same time that the Whanganui Settlement was going into effect. And he started thinking about one of the most critical bodies of water in his state… and, really, all of the western United States.
Jason Flores-Williams: I was keenly aware of the Colorado River being just on its way out due to over-usage and you know, Colorado River, the West depends on it. You've got places like Phoenix and Vegas and farming that is inefficient and all of this, and those things don't seem like they're going to change. So no one's going to shut down Phoenix anytime soon. Eventually nature will shut it down. No one's gonna shut down Vegas anytime soon, you know, the Southwest which is already dry and drying up even further and rapidly.
Ariel Lavery: Yep, climate change.
Austin Carter: Yep, that’s the one. So Jason joined with an environmental group called Deep Green Resistance and some other activists to petition the federal court on behalf of the Colorado River ecosystem, for violating the constitutional rights of the Colorado River. And right away, it was unprecedented.
Jason Flores-Williams: The first real problem [laughs] and you know, writing up this complaint, the first real big problem was there was no place to file – there's not like you go on on federal courts, you know, e-filing system, and find “personhood, rights in nature,” this is the subject matter under which you will file that. So it was just completely, it was completely unrecognized from day one. I mean, from even trying to file the damn thing. But you know, you know, call up a clerk, we got it done. And, and that's it.
Austin Carter: The case created a stir almost immediately, as environmental activists demonstrated outside the federal courthouse in support. They projected slogans on its walls, and the case garnered a fair amount of attention from the media including an article in The New York Times. But the most Jason was really expecting was a dismissal.
Jason Flores-Williams: But a dismissal with maybe a couple lines in it that we could use, like, you know, well, “there's no current law for this, this is an issue of first impression for some court seeing this. However, you know, this idea has validity, because this is a procedural defect of the law. And we could have ran with that, like nobody's business.
Ariel Lavery: Ok. So what ended up happening?
Jason Flores-Williams: So the thing that happened very quickly after that, once it was filed, was the attorney general sought sanctions against me, because my name’s on the damn file.
Ariel Lavery: Wow!
Austin Carter: The attorney general claimed the lawsuit was unlawful and frivolous. She threatened Jason and his office with judicial sanctions, financial penalties and even disbarment. The attorney general claimed quote “the case itself unacceptably impugned the State’s sovereign authority to administer natural resources for public use, and was well beyond the jurisdiction of the judicial branch of government.” Jason thinks it has more to do with what would have happened if it had gone to court and gotten a response from a judge.
Ariel Lavery: So the attorney general was saying that this case would go against the state’s authority on this river, right? And it wasn’t even within the power of the court to rule on it?
Jason Flores-Williams: Maybe that's what the attorney general was frightened of, because it would have got those one or two lines by a thoughtful judge saying this is an interesting concept, maybe something to look at down the road. And they didn't want to do that. I mean, they were terrified of that because of the interest that had most likely elected them.
Ariel Lavery: Yeah. I can totally imagine this would be a pretty big deal. And there are a lot of people using water along the entirety of the Colorado River who would be affected by this kind of lawsuit.
Austin Carter: You’re right. The Colorado River flows through seven states with millions of users depending on it. In the attorney general’s defense, the scope of such a case is pretty massive. [bouncy music fades in] But Jason wasn’t really surprised by the AG’s reaction to the case.
Jason Flores-Williams: Why wouldn't the system push back when you are directly challenging the system? Right? I mean, this kind of stuff is system-challenging, system-changing, you know, personhood, rights of nature, it would have a profound effect, if ever, if it ever, you know, took root and realized some traction.
Ariel Lavery: Ok, so now we have two examples of how this kind of proposed legislation has gone very differently in two different countries. And it makes me wonder if we’ll ever be able to get something like this in the books in this country, or if it’s maybe just too revolutionary.
Austin Carter: And I also wondered, if like the Whanganui in New Zealand, if America’s indigenous voices and ideas could be recognized and have a role to play.
[music fades]
Scene 3: A Future for the Colorado River
Amelia Flores My name is Amelia Flores. I'm the chairwoman of the Colorado River Indian Tribes. I am Mojave. I'm an enrolled member of CRIT, which is the acronym for Colorado River Indian Tribes.
Austin Carter: Chairwoman Flores served on the CRIT Tribal Council for eight years before chairing the group. In 2019, she took part in a unique cultural exchange. The tribe, and other tribes in Arizona, were contacted by Red Star International, an organization that advances indigenous ideas and causes.
Amelia Flores: They reached out to the river tribes in 2019 to get a group out to New Zealand to do a cultural exchange. So it was brought before the tribal council of who would want to go and I volunteered to make the journey and see what was out there.
Austin Carter: And Chairwoman Flores began to learn about the Maori’s struggles to protect their ancestral river.
Amelia Flores We had a little awareness, not fully understanding the extent of it, but hearing it firsthand, from the Maori people, and what it meant to them, added more to their connection and relationship to the to the river, and what the river meant, the personhood meant to them and how they struggled for, you know, many, many, many, many years to get the river back.
Ariel Lavery: What a great experience for them to get in this cultural exchange! Imagine if this could become a reality in this country. Have the Mojave moved forward with anything out of this?
Austin Carter: They haven’t, but you’ve got to keep in mind that the Whanganui Iwi worked for 150 years to get their settlement. So while Chairwoman Flores thinks personhood for the Colorado River is possible, it won’t be overnight.
Amelia Flores It's a possibility, it’s a possibility, to have that, but, you know, so much has gone on on the Colorado River, you know, all the water users. So it would be a big battle. It would be a really big battle and the politicians they're, you know, we would have to jump over a lot of hurdles, but it's not impossible. You'd have to have that fight of all the tribes, you know, not only the river tribes, but, you know, you'd be partners and have that support from all Native Americans, indigenous people in not only in the United States, but, you know, all over the world.
Austin Carter: But the whole experience in New Zealand was still profound to her, and resonated with the Mojave beliefs.
Amelia Flores It ties back to our origins and our Creator Matavilya. And, um, you know, how He provided the river for the Mojave people, and all the people that live along the Colorado River, the native people that live along the Colorado River, you know, how to sustain us. He gave us the land, and He gave us, you know, the river, and all of the resources to live off and to be stewards. And so it just added more depth to our responsibility, my responsibility, of taking care of the river, and not seeing it as just a river, but it goes deeper than that.
Austin Carter: And Chairwoman Flores saw similarities between her Mojave people and the Maori.
Amelia Flores: We're all stewards of our land and our water, you know, it's in different ways, different circumstances on our, our traditional lands that, you know, we are faced with the challenges and they persevered. And just as Native Americans in the United States, you know, we all have persevered, whatever has come before us.
Ariel Lavery: It’s interesting how these indigenous groups, separated by thousands of miles, still have similar fundamental ethics surrounding the stewardship of their lands. It makes me wish we could embrace that a bit more here, instead of a culture of exploitation.
Austin Carter: Totally. The chairwoman sees many challenges ahead in terms of the Colorado River. As with Jason’s case in 2018, there are many water users and powerful interests vested in the river’s use. But it’s obvious to Chairwoman Flores that something has to be done.
Amelia Flores The river has taken care of us all these years, now, it's time for us to take care of the river by doing what we can and cutting back and it's overused. The river, it's just overused right now. And so the brakes have to be put on, you know, policies have to be developed, policies have to be in place, and in an agreement with all the water users of the Colorado River, otherwise, if we don't, you know, come together, then yeah, then we may not have a river.
Austin Carter: One of the complications for the Colorado River is the multiple states and millions of water users who have a vested interest in its future. That makes stewardship and consensus difficult to reach. Its use is also defined by a 1922 compact from which the Native American tribes were excluded. That compact is set to expire soon and be renegotiated in 2026, but this time with the tribes at the table. Despite these challenges, Chairwoman Flores draws strength from her time in New Zealand with the Whanganui people.
Amelia Flores For me, it just touched into areas of who I am, as a person, who I am as a woman, who I am as a Mojave, who I am as, as a leader.
Austin Carter: While they’re not crusading for personhood yet, CRIT is fighting another battle. Arizona’s Senators, Mark Kelly and Kyrsten Sinema have introduced a bill to give the tribes more autonomy over their water rights, allowing them to lease out some of their significant allotment to benefit the tribe and help drought-stricken residents.
Ariel Lavery: Well, that’s great.
Austin Carter: I know. The Whanganui Chief told Chairwoman Flores something while she was in New Zealand that one might possibly attribute some of their recent success to.
[gentle plinky music fades in]
Amelia Flores He shared with me how they believe they're helping tribes, you know, all over the indigenous indigenous people all over the world, how they're helping, how the Whanganui is reaching out and helping with water issues. And he says when the river dumps into the ocean, then that evaporation from the ocean goes up into the clouds, and then with the different streams of wind, how it carries the clouds into different areas. And then, you know, when it reaches a certain point, the cloud releases, you know, the, the water from it. So he says in essence, we're helping you out, our river helps out the southwest. We're sending you know, we're sending the rain to you.. And so that really touched me when he said that, you know, and we're helping you out to, you know, when the rain comes, you know, it's from, it's from the Whanganui River.
[music fades]
Epilogue:
Austin Carter: So Ariel, I can guarantee you, the Whanganui Settlement and Jason’s case are just the beginning when it comes to the debate about environmental personhood. Since then, smaller communities in Colorado and the Great Lakes have passed personhood resolutions. And the idea has been put forward and passed in other communities internationally.
Ariel Lavery: It’s a really fascinating concept adnd I’m really curious to see how it continues to develop.
Austin Carter: Me too. There are some aspects of it that still need to be figured out practically. [expansive music fades in] Like the fact that if a river is a legal person, and can sue someone to collect damages for pollution or misuse, when a big flood comes through, can you sue the river?
Ariel Lavery: [laughs] Hmm. I don’t know how that would work.
Austin Carter: I know. How do you collect restitution from a river? [both laugh]
Austin Carter: But despite that, as a method of protection, and a legal concept, it’s pretty fascinating.
Ariel Lavery: Absolutely.
Austin Carter: I guess we’ll just have to follow the legal…currents.
Ariel Lavery: I see what you did there. [both laugh]
Credits:
You can find all the images in this episode on our website middleofeverywherepod.org or on instagram and facebook at @middleofeverywherepod, @middleofeverywherepod and twitter @rural_stories. If you want to be even more involved in the conversation, sign up for our newsletter so you’ll always be the first to know about new episodes and interesting things going on at WKMS and in our region. This episode of Middle of Everywhere was produced by me, Austin Carter, with editorial help from my co-host, Ariel Lavery. Our editor is Naomi Starobin. Our theme music was composed and recorded by Time On The String sound studio in Paducah, Kentucky. Other scoring was from APM music. Marketing and sponsorship support comes from Dixie Lynn. Middle of Everywhere is a production of WKMS and PRX. This program is made possible, in part, by the Corporation for Public Broadcasting, a private organization funded by the American people.