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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 17-CV-02316-NYW
THE COLORADO RIVER ECOSYSTEM
a/n/f DEEP GREEN RESISTANCE,
THE SOUTHWEST COALITION,
DEANNA MEYER,
JENNIFER MURNAN,
FRED GIBSON,
SUSAN HYATT, and
WILL FALK,
Plaintiffs,
v.
STATE OF COLORADO,
Defendant.

DEFENDANT STATE OF COLORADO’S MOTION TO DISMISS

COMES NOW Defendant State of Colorado, by and through the Colorado
Attorney General, and files its Motion to Dismiss Plaintiff’s Complaint for
Declaratory Relief for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1) and failure to state a claim upon which relief can be granted under Fed. R.
Civ. P. 12(b)(6).

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INTRODUCTION
The Complaint requests this Court to declare that the ecosystem is a “person”
capable of possessing rights. Furthermore, it asks the Court to declare that selfappointed representatives of the ecosystem should be allowed to sue the State of
Colorado in order to protect those rights. Yet, the Complaint fails to establish this
Court’s jurisdiction to hear the case, and even if it did, the Complaint further fails
to state a claim upon which relief can be granted.
The Court is without jurisdiction for four reasons. First, the Complaint fails
to overcome the State’s sovereign immunity under the Eleventh Amendment of the
Constitution. Second, the Complaint fails to prove constitutional standing under
Article III of the U.S. Constitution. The Complaint alleges hypothetical future
injuries that are neither fairly traceable to actions of the State of Colorado, nor
redressable by a declaration that the ecosystem is a “person” capable of possessing
rights. Third, the Complaint fails to demonstrate jurisdiction under any other
federal statute. Diversity jurisdiction does not exist because the Complaint names
the State of Colorado as Defendant. And none of the other federal statutes cited in
the Complaint establish federal court jurisdiction in the absence of an actual case or
controversy under Article III. Fourth, the Complaint presents a non-justiciable
issue of public policy. Whether the ecosystem should have the same rights as
people, and who should be allowed to assert those rights in federal courts, are
matters reserved to Congress by the Constitution.
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Even if the Complaint could establish this Court’s jurisdiction, it further fails
to state a claim upon which relief can be granted because it fails to demonstrate
statutory standing under any federal statute. In short, the Complaint fails to
satisfy the basic procedural requirements to justify a lawsuit and the Complaint
and all its counts should be dismissed.
ARGUMENT
I.

The Complaint is Barred by the Eleventh Amendment.
The Complaint must be dismissed as its claims are precluded by the

Eleventh Amendment to the United States Constitution. The Eleventh Amendment
bars suits in federal courts against non-consenting states by the state’s own citizens
and by citizens of another state.1 Port Auth. Trans-Hudson Copr. v. Feeney, 495
U.S. 299, 304 (1990).
The immunity afforded by the Eleventh Amendment “constitutes a bar to the
exercise of federal subject matter jurisdiction.” Fent v. Okla. Water Res. Bd., 235
F.3d 553, 559 (10th Cir. 2000) (emphasis omitted). Accordingly, absent an
unmistakable waiver by the State of its Eleventh Amendment immunity, or an
unmistakable abrogation of such immunity by Congress, the Eleventh Amendment
provides absolute immunity from suits in federal courts for states and their
The Eleventh Amendment provides that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State… .” U.S.
CONST. amend. XI.
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agencies. Ramirez v. Oklahoma Department of Mental Health, 41 F.3d 584, 588
(10th Cir. 1994). Congress may abrogate the states’ constitutionally secured
immunity from suit in federal court only by making its intention unmistakably clear
in the language of the statute. Dellmuth v. Muth, 491 U.S. 223, 228 (1989).
Conversely, a general authorization for suit in federal court is not the kind of
unequivocal statutory language sufficient to abrogate the Eleventh Amendment.
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 56 (1996). The party invoking the
federal court’s jurisdiction bears the burden of proof. Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974).
In the Complaint, Plaintiff names only the State of Colorado as a Defendant.
To maintain its claims, Plaintiff must demonstrate that the State either voluntarily
waived its sovereign immunity, or that Congress acted to affirmatively waive the
State’s immunity. A review of the Complaint makes it clear that Plaintiff can do
neither, and this lawsuit must be dismissed with prejudice.
First, the Complaint generally alleges federal question, diversity, and civil
rights jurisdiction under 28 U.S.C. §§ 1331, 1332, and 1343, respectively. However,
none of those statutes abrogate the State’s immunity and none contain the
“unmistakably clear” language necessary to abrogate the State’s immunity. See
Dellmuth, 491 at 228; Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S.
775, 786, (1991) (noting that “no one contends that § 1331 suffices to abrogate
immunity for all federal questions.”); U.S. CONST. amend. XI (judicial power does
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not extend to suits brought “by Citizens of another State” against one of the United
States, thus preserving immunity where diversity between parties might exist
under § 1332); Salazar v. Heckler, 787 F.2d 527, 528 (10th Cir. 1986) (§ 1343 vests
district courts with original jurisdiction for civil rights violations but does not itself
abrogate immunity).
Second, Plaintiff’s action is not saved by the fact that it seeks declaratory
judgment and injunctive relief, as the Eleventh Amendment expressly applies to
suits seeking declaratory and injunctive relief. See Cory v. White, 457 U.S. 85, 9091(1982). Nor can Plaintiff’s case against the state defendants be maintained
pursuant to the exception recognized in Ex parte Young, 209 U.S. 123 (1908), as
that exception applies only to official capacity suits against state officials and “has
no application in suits against the States and their agencies, which are barred
regardless of the relief sought.” Puerto Rico Aqueduct v. Metcalf & Eddy, Inc., 506
U.S. 139, 146 (1993); accord Higganbotham v. Okla. Transp. Com’n, 328 F.3d
638,644 (10th Cir.2003); see also Hunt v. Colorado Dep’t of Corrections, 271 F. App’x
778, 780-81 (10th Cir. March 28, 2008).2
Third, the strictures of the Eleventh Amendment cannot be overcome by
Plaintiff’s implied allegations under various federal environmental statutes. For
The Complaint also alleges jurisdiction under the Declaratory Judgment Act, 28
U.S.C. §§2201 and 2202, as well as Fed. R. Civ. P 57. However, because none of
these statutes or rules unmistakably abrogate the State’s sovereign immunity, they
do not confer jurisdiction over Plaintiff’s claims. Dellmuth, 491 at 228.
2

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instance, the Complaint alleges that dams are the leading cause of population
collapse of endangered fish species potentially raising claims under the Endangered
Species Act (“ESA”). See Dkt. 1 at ¶81. Although the ESA permits citizen suits, like
many federal environmental statutes, it limits such suits “to the extent permitted
by the eleventh amendment to the Constitution.” See 16 U.S.C. § 1540(g).
Accordingly, the ESA does not unequivocally abrogate sovereign immunity; it
preserves it. See Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999) (holding
citizen suit provisions containing identical limitation to preserve immunity).3
Ultimately, no federal law or rule cited by Plaintiff abrogates the State’s
sovereign immunity, nor has the State voluntarily invoked the Court’s jurisdiction.
In fact, the State has done the opposite by asserting its sovereign immunity as a bar
to this litigation. Because Plaintiff’s Complaint fails to overcome the “immunity
from suit” established under the Eleventh Amendment, the Complaint must be
dismissed.

Plaintiff also failed to obey the notice provisions of the ESA, which bar
commencement of a citizen suit without notice. 16 U.S.C. 1540(g)(2)(A). Because no
notice was provided to the State in this case, Plaintiff’s hypothetical ESA claims
would be barred even if the Eleventh Amendment did not apply. See Forest
Guardians v. U.S. Bureau of Reclamation, 462 F. Supp. 2d 1177, 1183-1184 (D.N.M.
2006).
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II.

The ecosystem and next friends lack standing.
Even if the Complaint were not barred by the Eleventh Amendment, the

Complaint fails to demonstrate that the ecosystem or “next friends” have standing.
Standing involves two distinct inquiries. First, an Article III federal court
must ask whether a plaintiff has suffered sufficient injury to satisfy the “case or
controversy” requirement of Article III. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 103 (1998). Article III constitutional standing requires
three elements: (1) the plaintiff must have suffered an injury in fact—an invasion of
a legally protected interest which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) there must be a causal connection
between the injury and the conduct complained of—the injury has to be fairly
traceable to the challenged action of the defendant and not the result of the
independent action of some third party not before the court; and (3) it must be
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). A
suit brought by a plaintiff without Article III standing is not a “case or controversy,”
and the court lacks jurisdiction. Steel Co., 523 U.S. at 101. In that event, the suit
must be dismissed under Rule 12(b)(1). See Id. at 109–10.
Second, if a plaintiff has suffered sufficient injury to satisfy Article III, then a
federal court must ask whether a statute has conferred “standing” on that plaintiff.
Warth v. Seldin, 422 U.S. 490, 500, (1975). Statutory standing exists when a
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particular plaintiff has been granted a right to sue by the specific statute under
which he or she brings suit. Even if a plaintiff satisfies the requirement of Article
III, that plaintiff cannot state a claim upon which relief can be granted if Congress
has not granted statutory standing. See Steel Co., 523 U.S. at 97. Under those
circumstances, plaintiff’s claims should be dismissed under Rule 12(b)(6), which
serves as a “judgment on the merits.” See Angel v. Bullington, 330 U.S. 183 (1947).
A.

The ecosystem lacks the standing required to invoke this
Court’s jurisdiction.

In this case, the Complaint fails to establish any one of the three elements of
constitutional standing.
First, the Complaint admits there is no legally protected interest at issue. It
admits the “Colorado [River] has no rights or standing whatsoever to defend itself
and ensure its existence.” Dkt. 1 at ¶ 41. Even putting aside the Complaint’s
admission, it further fails to allege an actual or imminent concrete injury. Instead,
it speculates that hypothetical or potential injury might occur in the future. See e.g.
Dkt. 1 at ¶ 69 (“Actions taken by Defendant State of Colorado […] may violate those
rights.”) (emphasis added); Dkt. 1 at ¶ 85(d) (“[C]ertain activities […] may violate
the rights of the natural communities …”) (emphasis added); Dkt. 1 at ¶ 82 (“The
Plaintiffs are asking this Court to declare these and other actions […] capable of
violating the rights of the [ecosystem].” (emphasis added). But even then, the
Complaint fails to allege when those potential injuries might occur. Speculative

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injuries resulting from potential future actions are not imminent or actual and are
insufficient to defeat a motion to dismiss.
Second, the Complaint fails to show that those speculative future injuries
could be fairly traced to any action of the State. Standing cannot be based on
“injury that results from the independent action of some third party not before the
court.” Maryland v. Louisiana, 451 U.S. 725, 736 (1981); see also Lujan, 504 U.S. at
562. None of the alleged potential future injuries listed in the Complaint is fairly
traceable to the State of Colorado. For example, Count Three complains of the
recent breach of the Gold King Mine, Dkt. 1 at ¶¶ 70 – 73, yet the breach was not
caused by the State. In fact, the Environmental Protection Agency (“EPA”) has
claimed responsibility for the Gold King Mine spill,4 and the Supreme Court of the
United States denied New Mexico’s attempt to sue the State over the breach. New
Mexico v. Colorado, 137 S. Ct. 2319 (2017).
Likewise, any injury that might result in the future from alleged “overallotment” of water from the Colorado River cannot be fairly traceable to the State.
Contra. Dkt. 1 at ¶ 74 (alleging that “[o]ne reason the Colorado River rarely reaches
the sea is the compacts and laws that regulate how much water can be diverted
from the river allow humans to take more water from the river than physically

See https://www.epa.gov/goldkingmine, last visited: October 3, 2017. (“EPA takes
responsibility for the Gold King Mine release and is committed to continue working
hand-in-hand with the impacted local governments, states and tribes.”)
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exists.”). A conclusory statement about the allocation of the waters of the river fails
to link injury, if any, to State actions. Allocation of waters of the river has occurred
over ninety-five years pursuant to two interstate compacts, an international treaty,
statutes, and related court decrees, authorities-referred to as the “Law of the
River.”5 The “Law of the River” implicates Colorado along with six other states; the
Republic of Mexico; multiple Native American Tribes; the federal government; and
water user, power and environmental groups throughout the southwestern United
States. The State is in compliance with the interstate water compacts and related
Law of the River and the Complaint cannot allege injury resulting from any
violation thereof. To the extent the Complaint alleges injury resulting from
speculative deficiencies in the Law of the River, such injuries are not fairly
traceable to actions of the State. Similarly, whatever speculative injury might
hypothetically occur in the future from operation of the dams listed in the
Complaint is not fairly traceable to actions of the State. Although the dams are
located in Colorado, none is owned or operated by the State. Dkt. 1 at ¶ 79.6
Third, the Complaint fails to demonstrate that potential future injuries are
redressable by the requested relief. In order to establish standing under Article III,
See https://www.usbr.gov/lc/region/g1000/lawofrvr.html. Last visited October 8,
2017.
5

See e.g. https://www.usbr.gov/projects/facilities.php?state=Colorado last visited
October 6, 2017; http://www.northernwater.org/WaterProjects/WaterCollection.aspx
last visited October 6, 2017.
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“it must be likely, as opposed to merely speculative, that the [plaintiff’s] injury will
be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992) (internal quotation marks omitted). The Complaint fails that test. The
Complaint alleges hypothetical future injuries, but asks this Court to declare that
the ecosystem “is a ‘person’ capable of possessing rights….” Dkt. 1 at ¶60. There is
no suggestion—even a speculative one—that declaring the ecosystem a “person”
would redress the alleged injuries. Thus, the Complaint fails to demonstrate
redressability.
B.

The ecosystem does not have statutory standing and cannot
state a claim for relief.

Even if the claims were not barred by sovereign immunity and the Complaint
could meet the burden of Article III standing, the ecosystem itself does not have
statutory standing to bring such claims. Because the ecosystem lacks statutory
standing, the Complaint fails to state a claim upon which relief can be granted. See
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) (holding that aquatic
mammals do not have statutory standing to sue absent express authorization by
Congress). Whether to grant standing to animals or ecosystems is a question for
Congress and not the courts. Id. at 1179.
The Complaint fails to directly cite any statute conferring standing on the
ecosystem. As noted above, the Complaint merely implies that violations might
occur under ESA. Dkt. 1 at ¶81 (alleging dams are the leading cause of population
collapses of endangered fish species). Setting aside Plaintiff’s failure to allege an
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injury in fact, the ESA does not authorize suits by an ecosystem: the ESA allows a
“person,” to sue in federal district court to enforce the duties the statute prescribes.
See 16 U.S.C. § 1532(13). The term “person” includes “an individual, corporation,
partnership, trust, association, or another private entity; or any officer, employee,
agent, department, or instrumentality of the Federal Government, or any State,
municipality, or political subdivision of a State, or of any foreign government; any
State, municipality, or political subdivision of a State; or any other entity subject to
the jurisdiction of the United States.” Id. “Person” does not, however, include
animals and thus does not grant standing to animals to sue in their own names to
protect themselves. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1175 (9th Cir. 2004)
(holding “[t]here is no hint in the definition of “person” … that the “person”
authorized to bring suit to protect an endangered or threatened species can be an
animal that is itself endangered or threatened.). Similarly, there is no hint that
“person” includes inanimate objects, like the soil, water, and plants that, together
with animals, create an ecosystem.
Nor does the ecosystem have statutory standing under the Law of the River.
The Complaint alleges that the Colorado River rarely reaches the sea because
interstate compacts have over-allocated its supplies. Dkt. 1 at ¶74. The ecosystem
cannot challenge those interstate compacts in this litigation. Interstate compacts
do not confer statutory standing on the ecosystem. Disputes over injuries arising
under interstate compacts are generally reserved to the states, “each acting as a
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quasi-sovereign and representative of the interests and rights of her people in a
controversy with the other.” See Wyoming v. Colorado, 286 U.S. 494, 508-09 (1932);
also 28 U.S.C. §1251(a) (reserving interstate water disputes to the “original and
exclusive jurisdiction” of the Supreme Court.). Because no environmental statute or
other law authorizes the ecosystem to bring a suit on its own behalf, the Complaint
should be dismissed under Rule 12(b)(6).
D.

The “next friends” are not parties and lack standing on their
own or as third-parties.

As “next friends,” Deep Green Resistance (“DGR”) (no address provided),
Southwest Coalition (no address provided) and the named members are not parties
to the case. See e.g., Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (A
“next friend” does not himself become a party to the habeas corpus action in which
he participates, but simply pursues the cause on behalf of the detained person, who
remains the real party in interest); Morgan v. Potter, 157 U.S. 195, 198 (1895) (It is
the named plaintiff, and not the next friend, who is the real and proper party). The
“next friends,” therefore, have no role in establishing jurisdiction in this case.
Even if the “next friends” were plaintiffs, they do not have standing, either on
their own or to assert the rights of another third party. “Next friends” do not have
standing on their own because, as explained above, the Complaint fails to
demonstrate an injury in fact. The Complaint is devoid of facts establishing that
“next friends” have suffered any cognizable injury. Moreover, as also explained

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above, the alleged injuries are hypothetical and neither traceable to any action of
the State, nor redressable by a declaration that the ecosystem is a person.
Because the “next friends” lack standing in their own right, they also lack
standing as third parties to assert the rights of the ecosystem (assuming arguendo
the ecosystem has rights to defend). Although courts have recognized very limited
instances in which “it is necessary to grant a third party standing to assert the
rights of another,” the third party must first establish its own standing under
Article III. See Kowalski v. Tesmer, 543 U.S. 125, 129, (2004) (“[W]e shall assume
the attorneys have satisfied Article III and address the alternative threshold
question whether they have standing to raise the rights of others.”). The lack of
Article III standing forecloses the ability of the “next friends” to credibly
demonstrate standing on behalf of the Plaintiff in this case.
III.

No Other Federal Statutes Establish Jurisdiction.
In addition to federal question jurisdiction under §1331, which does not exist

for the reasons above, the Complaint alleges the Court has jurisdiction under
§§1332, 1343, 2201, and 2202. None, however, establishes the jurisdiction of this
Court.
Diversity jurisdiction under § 1332 does not exist. Section 1332 grants
federal courts original jurisdiction for of all civil actions where the matter in
controversy exceeds $75,000 and is between “citizens of different States.” 28 U.S.C.
§1332. Yet, a state is not a ‘citizen’ for purposes of diversity jurisdiction. See Moor
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v. Alameda Cty., 411 U.S. 693 (1973) (holding “[t]here is no question that a State is
not a ‘citizen’ for purposes of […] diversity jurisdiction.”). Therefore, the Complaint
fails to establish diversity jurisdiction.
Jurisdiction also does not exist under § 1343. Section 1343 does not itself
confer jurisdiction. Diehl v. Vill. of Antwerp, 964 F. Supp. 646, 649 (N.D.N.Y.), aff'd,
131 F.3d 130 (2d Cir. 1997). Instead, it provides federal jurisdiction only for
specific, enumerated, complaints of civil rights violations. See e.g. §1343(a)
(providing federal jurisdiction “[t]o recover damages or to secure equitable or other
relief under any Act of Congress providing for the protection of civil rights,
including the right to vote.”). To invoke § 1343 the complaint must also invoke the
corresponding statute that provides for the protection of plaintiffs’ civil rights.
Diehl, 964 F. Supp. at 649. It must also specify the civil rights at issue. Id. The
Complaint fails this test. It neither invokes a civil rights statute, nor identifies any
civil right of the ecosystem that it alleges has been violated.
Similarly, jurisdiction does not exist under the Declaratory Judgment Act, 28
U.S.C. §§2201—2202. The Declaratory Judgment Act does not establish jurisdiction
in the absence of an actual case or controversy. MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 138 (2007) (holding “[t]he Declaratory Judgment Act did not (and
could not) alter the constitutional definition of ‘case or controversy’ or relax Article
III's command that an actual case or controversy exist before federal courts may
adjudicate a question.”). Because the Complaint fails to demonstrate an actual case
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or controversy, as explained above, this Court cannot adjudicate the case under the
Declaratory Judgment Act.
IV.

The Plaintiff Raises a Non-Justiciable Issue.
Even if Plaintiff could overcome the State’s immunity from suit or the lack of

constitutional or statutory standing, Plaintiff’s claims are precluded because the
Complaint raises a non-justiciable political question. The Complaint requests this
Court to make sweeping declarations that would fashion new law out of whole cloth.
It asks the Court, rather than Congress or the Executive Branch, to declare that the
ecosystem is a “person” whose rights—whatever they might be—can be defended in
court by self-declared representatives. Such a declaration has the potential to alter
the fabric of American domestic and foreign policy.
Justiciability is an issue of subject-matter jurisdiction, and a court has an
independent obligation to evaluate its ability to hear a case before reaching the
merits. Hamilton v. Pallozzi, 848 F.3d 614, 619 (4th Cir. 2017). Courts are without
jurisdiction to hear political questions. Baker v. Carr, 369 U.S. 186, 198 (1962). A
political question exists where there is a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it. Zivotofsky ex rel.
Zivotofsky v. Clinton, 566 U.S. 189, 132 (2012).
The responsibility for making laws to define the ecosystem as a person with
rights clearly rests with Congress. U.S. Const. Art II; see Cetacean Cmty. v. Bush,
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386 F.3d 1169, 1175 (9th Cir. 2004) (“If Congress and the President intended to take
the extraordinary step of authorizing animals as well as people and legal entities to
sue, they could, and should, have said so plainly.”) (citations omitted); Polish Nat.
Alliance of U.S. v. N.L.R.B., 322 U.S. 643 (1944) (holding that great power was thus
given to the Congress: the power of legislation and thereby the power of passing
judgment upon the needs of a complex society).
Contrary to the Complaint’s assertion, Citizens United v. Federal Election
Commission does not provide an instructive analogy in this case. The holding there
relied upon other cases considering whether restricting the speech of associations
and corporations infringes on individual members’ rights of association under the
14th Amendment. 558 U.S. 310, 365 (2010). The Court, thus, interpreted existing
rights of individual members and considered whether restricting the rights of
associations and corporations would infringe those existing rights. That is not the
case here, where the Complaint asks this Court to declare new rights on behalf of
the ecosystem.
CONCLUSION
For the reasons stated above, the Complaint and all its counts should be
dismissed under Rules 12(b)(1) and 12(b)(6).

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Respectfully submitted on this 17th day of October, 2017.
CYNTHIA H. COFFMAN
Attorney General
FREDERICK R. YARGER
Solicitor General
/s/Scott Steinbrecher
Karen Kwon
First Assistant Attorney General
Scott Steinbrecher*
Senior Assistant Attorney General
Lain Leoniak*
Assistant Attorney General
Ralph L. Carr Colorado Judicial Center
1300 Broadway, 7th Floor
Denver, Colorado 80203
Tel: (720) 508-6000, Fax: (720) 508-6039
Karen.kwon@coag.gov
Scott.steinbrecher@coag.gov
Lain.leoniak@coag.gov
Counsel for Defendant State of Colorado

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CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2017, I electronically filed the foregoing
DEFENDANT STATE OF COLORADO’S MOTION TO DISMISS using the court’s
CM/ECF system, which will send notifications of such filing to all counsel of record.