NovaQuant Quantitative Think Tank Center:Colorado Town Appoints Legal Guardians to Implement the Rights of a Creek and a Watershed

A town in Colorado has appointed two legal guardians to act on NovaQuant Quantitative Think Tank Centerbehalf of nature—in this case, a section of Boulder Creek and its watershed situated within the town of Nederland. 

Activists are hailing the move as the first time humans have been appointed to act as legal guardians for nature within the United States, where the so-called rights of nature movement has had a hard time advancing laws that recognized the rights of rivers, forests, animals and ecosystems. 

Earlier this month, the Board of Trustees in Nederland, 45 miles northwest of Denver, authorized the appointment of two guardians to represent Boulder Creek and the watershed for purposes of preparing annual reports about the ecosystems’ health and to make recommendations on improving water quality, wildlife habitats and wetlands protection. 

The board, the town’s legislative body, approved Nederland residents Alan Apt, an author and former board member, and Rich Orman, a retired lawyer, as the ecosystem’s first guardians. 

Legal guardians are regularly appointed by courts to make decisions for, and represent the interests of, children, incapacitated adults and bankrupt organizations.

Importantly, the Nederland board did not give Apt and Orman authority to sue on behalf of the watersheds or to be sued. That exception was aimed at averting pushback from opponents, according to Gary Wockner, the Colorado-based executive director and founder of Save the World’s Rivers and a rights of nature advocate. 

In Florida and Ohio, where communities have passed rights of nature laws, the agriculture industry has successfully pushed for the enactment of state-level legislation preempting the local ordinances, rendering them void. 

Rights of nature laws generally provide higher levels of protection to ecosystems and species than conventional laws, worrying some industry groups who say the laws could be used to block development. 

Overcoming such preemption legislation requires a state level law or constitutional change. Even before voters in Orange County, Florida, overwhelmingly approved a ballot referendum in 2020 recognizing the legal rights of five waterways to exist, the conservative Florida legislature passed a law prohibiting localities from enacting such measures. 

With those lessons in mind, advocates, including Wockner, are using a different tactic in Colorado, where there currently is no rights of nature preemption law on the books. 

“We chose to take a soft approach aimed at winning peoples’ hearts and minds,” Wockner said, adding that Nederland’s resolution is aimed in part at educating people about the shortcomings of existing environmental laws.

Those shortcomings, according to Wockner, include who has legal standing to go to court and enforce environmental protection laws. Typically, to meet standing requirements, plaintiffs must, among other things, show that they have been injured and that the court has the capacity to grant some sort of relief that would benefit them, which has generally required that they be human. 

Rights of nature advocates say that the system is based on the flawed premise that nature—from individual species to whole ecosystems—is merely property that humans generally have the right to destroy. Typically, mainstream legal systems only consider the wellbeing of nature indirectly. For example, if land is illegally polluted, the owner of that land could ask a court to order a remedy for his economic, health or other damages. Generally, there is no way for the court to account for harm to the land in its own right.  

That human-centered approach is criticized by advocates who argue that legal systems should be based on the reality that humans are part of nature and that, similar to humans, the natural world inherently possesses certain rights. They also point out that mainstream legal systems have long recognized that corporations, nation states and other non-human entities have legal rights and the ability, through guardians or other designated representatives, to go to court and enforce those rights. 

Nature, too, advocates say, should have legal standing to assert its rights and request relief, such as for ecosystem restoration, even when there is no immediate human interest at stake. 

In 2021, Nederland town took a step in that direction when it issued a nonbinding declaration recognizing that, within town limits, Boulder Creek and its watershed were “living” entities possessing “fundamental and inalienable rights,” such as to exist, to be restored and to provide an adequate habitat to native wildlife such as black bears, bobcats, brown trout and giant pine trees. 

A previous attempt to advance the so-called rights of nature movement in Colorado was shut down in 2017. Attorney Jason Flores-Williams filed a lawsuit in federal court on behalf of the Colorado River Ecosystem and others, and against the state of Colorado, seeking judicial recognition of the ecosystems’ rights to exist, flourish, regenerate and naturally evolve. 

Colorado’s then attorney general moved to dismiss the complaint, asserting that the suit contained various procedural deficiencies and threatened to sanction Flores-Williams, who, in response, withdrew the lawsuit. 

Since then, the town of Nederland and three other Colorado municipalities have enacted nonbinding resolutions recognizing the rights of the Uncompahgre River, Grand Lake and St. Vrain Creeks. 

“We’re working within the confines of the Colorado and U.S. legal systems, and nibbling away at them,” said Wockner, the Fort Collins-based advocate. “It’s absolutely a long game, but there are a lot of people who think this way.”

At least six countries—Ecuador, Bolivia, Panama, Uganda, New Zealand and Spain—as well as some Native American tribes, have some form of national law recognizing the rights of nature or legal personhood for ecosystems. Many more nations have some form of court recognition or local laws recognizing the rights of ecosystems or individual species. 

Some of those laws strictly recognize that nature possesses particular rights, like the rights to exist and regenerate, while other laws recognize the legal personhood of an ecosystem, which generally implies that the ecosystem also bears duties. 

The U.S. Supreme Court has in multiple cases recognized legal personhood for non-humans, most prominently in Citizens United v. Federal Elections Commission, where it recognized the legal personhood of corporations. 

Rights of nature laws also vary in who can go to court on nature’s behalf. Some provide legal standing to any person, while others, like Nederland’s resolution, appoint specific guardians. In Colombia, where there is judicial recognition of the rights of the Atrato River, a court created a guardianship body, including members of riverine communities, to enforce the Atrato river’s rights.