Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 1 of 36 1 2 3 4 5 6 7 JASON FLORES-WILLIAMS LAW OFFICE OF JASON FLORES-WILLIAMS 1851 BASSETT, STE 509 DENVER, CO 80202 303-514-4524 JFW@JFWLAW.NET Attorney for Plaintiff 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF COLORADO 10 11 12 THE COLORADO RIVER ECOSYSTEM, 13 a/n/f 14 15 DEEP GREEN RESISTANCE, THE 16 SOUTHWEST COALITION, 17 DEANNA MEYER, JENNIFER 18 MURNAN, FRED GIBSON, SUSAN 19 HYATT, WILL FALK.; OWEN 20 LAMMERS, individually as the Living 21 22 23 24 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Rivers Executive Director; and JOHN WEISHEIT, individually as the “Colorado Riverkeeper”, Plaintiff, 25 26 Case No.: [Number]17cv02316 - NYW vs. 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 1 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 2 of 36 1 STATE OF COLORADO, JOHN W. 2 3 4 5 6 7 HICKENLOOPER, Defendant.in his Official Capacity as Governor of the State of Colorado; Defendant. 8 9 10 11 IV.I. INTRODUCTION 12 13 14 15 Our system of law has failed to stop the degradation of the natural environment, and consequently, has failed to protect the natural and human communities which depend on it for their survival and livelihood. Environmental law has failed to protect the natural environment 16 17 because it accepts the status of nature and ecosystems as property, while merely regulating the 18 rate at which the natural environment is exploited. Its failure can be seen from the worsening of 19 climate change, the continued pollution of ground and surfacewatersurface water, accelerating 20 species extinction, and the decline of every major ecosystem on the continent. 21 The Colorado River is one such ecosystem. Climate change is worsening Colorado River 22 23 droughts, many of its tributaries have receded, and the River has been prevented from making its 24 way to the sea. The Colorado River’s continuing existence, let alone its ability to continue to 25 provide sustenance for both human and natural communities, is now at issue. 26 27 Faced with similar threats to important ecosystems, courts and legislatures around the globe have begun to create a new kind of environmental law, one which recognizes that 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 2 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 3 of 36 1 ecosystems themselves possess certain rights, and which allows people and communities to sue 2 on their behalf for damages caused to the ecosystem. By recognizing standing on behalf of the 3 ecosystem itself, injuries caused to the ecosystem are directly recoverable, rather than being 4 5 dependent solely on harms caused to the users of those ecosystems. Much in the same way that 6 African-Americans and women became “visible” to courts in the 1800’s1800s, courts and 7 legislatures now are making ecosystems visible to the institutions of government. 8 9 Through this action, the Plaintiffs arePlaintiff is asking this Court to recognize and declare that the Colorado River is capable of possessing rights similar to a “person,” and that as 10 11 part of that declaration, that the Colorado River has certain rights to exist, flourish, regenerate, 12 and naturally evolve., and be restored. In the absence of such a finding, Plaintiffs 13 contendPlaintiff contends that existing environmental laws will continue to fail to protect the 14 Colorado River, and thus, continue to fail to protect the human and natural communities that are 15 dependent on the River. 16 17 18 V.II. PARTIES 19 20 21 A. THE COLORADO RIVER ECOSYSTEM 1. No ecosystem is more responsible for the facilitation of life - human and non-human - in 22 the arid Southwest than the Colorado River. 23 1. Plaintiff COLORADO RIVER ECOSYSTEM encompasses the area bound by the 24 highpoints and ridgelines where drop-by-drop and grain-by-grain, water, sediment, 25 26 27 and dissolved materials ebb their way toward the Gulf of California: some 246,000 square miles (640,000 km2) in southwest North America including portions of 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 3 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 4 of 36 1 Colorado, New Mexico, Wyoming, Utah, Nevada, Arizona, California in the United 2 States, and portions of Baja California and Sonora in Mexico. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 4 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 5 of 36 1 2 3 2. Plaintiff Colorado River Ecosystem’s most vital elements are the arteries that nourish 4 5 it, particularly its namesake, the Colorado River, as well as its major tributaries the 6 Green, San Juan, and Gila Rivers. Prior to the construction of dams and large-scale 7 surface water diversions—see map supra – water, sediment, and nutrients could make 8 their way upwards of 1,450 miles along these passages to the Pacific Ocean. 9 3. Though traditionally defined by these major rivers, the Colorado River Ecosystem is 10 11 far more vast, including all the creeks, streams, and tributaries that feed them, along 12 with the surrounding landscape where water percolates and flows underground. This 13 continued drainage process has given way to a complex array of interconnected 14 habitat for flora and fauna. From the forests to the deserts bounding these riparian 15 corridors has emerged a unique assemblage of life we have barely scratched the 16 17 surface of documenting, much less understanding. 18 4. Plaintiff Colorado River Ecosystem, especially its supply of water, has allowed the 19 emergence of a society of 40 million people and an annual economy valued at $1.4 20 trillion. 21 1.5. Human language lacks the complexity to adequately describe thePlaintiff Colorado 22 23 24 25 26 River Ecosystem. Any attempt to define it, or account for the sheer amount of life made possible by it, will necessarily be arbitrary. 2.6. Nevertheless, we are asked to bring an accurate description of the Colorado River Ecosystem from the vastness of the real, physical world into the small confines of a 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 5 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 6 of 36 1 courtroom. We shall start with this: Thethe Colorado River Ecosystem is best 2 understood as a complex collection of relationships. 3 3.7. These relationships are nearly infinite. The most fundamental include the attraction 4 5 between hydrogen and oxygen; the liquid, ice, and gas that water and heat create 6 together; the irresistible paths fashioned by the interplay of mountain and gravity; and 7 the climate born from the intercourse of the Sun’s energy and Earth’s atmospheric 8 gasses. 9 4.8. If we begin with water, we see -– high in the sky -– water dancing as vapor on wind 10 11 currents. When the dance brings enough water together, clouds form. As clouds pass 12 over the high Colorado Rockies, water freezes and falls as snow. Over the course of 13 winterWinter, clouds contribute their stores of water and snowpack builds. In Spring, 14 snowmelt forms creeks and streams who are guided by mountains through canyons 15 and valleys. Rare summer rains do what they can to join the snowmelt. 16 17 5.9. Beneath the Earth’s surface, springs pull groundwatersgroundwater to form their own 18 creeks and streams. Snowmelt, rain, and spring waters intermingle with gravity. And, 19 gravityGravity gathers these waters as they tumble down stone faces, run across tree 20 roots, and seep into sand and soil. The snowmelt, spring water, and gravity build in 21 power as they mix. They soften mountainsides, carve through red rock, and brave the 22 23 deserts who seek to exhaust them. 24 6. The moving waters that create the Colorado River and sustain countless species of flora 25 and fauna cover much more expansive distances than the space between riverbanks 26 commonly understood as the “Colorado River.” 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 6 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 7 of 36 1 2 3 7. The traditional conception of the Colorado River locates the river’s headwaters in La Poudre Pass, in Colorado’s Rocky Mountains. Before the construction of dams and largescale diversion, the Colorado flowed 1,450 miles into the Pacific Ocean near Sonora, 4 5 6 7 8 9 Mexico. Since the completion of the Glen Canyon Dam in 1963, the Colorado has rarely connected with the sea. 8. The Colorado River Drainage Basin is the seventh largest drainage basin in North America, covering 246,000 square miles. Ninety-seven percent (97%) of the drainage basin is in the United States. Twenty-five significant tributary rivers join the Colorado 10 11 River, including the Green, Gila, San Juan, Little Colorado, Dolores, Gunnison, and 12 Virgin Rivers. 13 9.10. 14 15 Fourteen native fish lived in the Colorado River when European settlers arrived in the West, including four fish that are now endangered: the humpback chubHumpback Chub, Colorado pikeminnow, razorback suckerPikeminnow, Razorback Sucker, and 16 17 bonytail. Only six known humpback chub populations persist.Bonytail. Colorado 18 pikenminnowPikenminnow are no longer found below the Glen Canyon Dam. Wild 19 populations of bonytailBonytail no longer exist. Endangered fish species with 20 restricted ranges in Colorado River tributaries include the Little Colorado 21 spinedaceSpinedace, Kendall Warm Springs dace, desert pupfishDace, Desert 22 23 Pupfish, and springfishSpringfish. 24 11. Among the very first list of species approved under the Endangered Species Act, was 25 the Colorado River’s Humpback Chub and Pikeminnow (formerly Squafish). Yet, 26 now only six known Humpback Chub populations persist. The Endangered Species 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 7 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 8 of 36 1 Act has failed to reverse the pace of biodiversity degradation, as scientists warn of 2 humankind’s role in what’s emerging as a sixth mass extinction. 3 12. Recognition of the rights belonging to the Colorado River Ecosystem is an essential 4 5 6 7 8 9 evolution, addressing the shortcomings of regulatory environmental law and bringing our legal framework in line with biological and scientific reality. 10.13. Springs that feed the Colorado River Ecosystem, and the Colorado’sColorado River’s tributaries, support several species of very rare snails including the Overton assimineaAssiminea, Grand Wash springsnailSpringsnail, Pahranagat 10 11 12 13 14 15 pebblesnailPebblesnail, Moapa pebblesnailPebblesnail, and Hot Creek pebblesnailPebblesnail. 11.14. ThePlaintiff Colorado River’sRiver Ecosystem’s natural communities include a diversity of forest and flora including dense spruceSpruce-fir, pinyon-juniperPinyonJuniper, and mixed broadleaf and cottonwood forests; moist mountain grasslands 16 17 where tufted hair grass, Thurber’s fescueFescue, and blue jointBlue Joint grass 18 flourish; prolific willow carrs; desertProlific Willow Carrs; Desert scrublands; and 19 sparse saltbush-greasewood basins. 20 21 12.15. ThePlaintiff Colorado River’sRiver Ecosystem’s riparian communities are among the most important habitats for winged creatures in the Western United States. One 22 23 hundred and thirty-nine (139) confirmed butterfly species can be found in Rocky 24 Mountain National Park, alone. Iconic, and endangered or threatened, birds like the 25 bald eagle, greater sage grouseBald Eagle, Greater Sage Grouse, Gunnison sage 26 grouse, peregrine falcon, yellow-billed cuckoo, summer tanagerSage Grouse, 27 Peregrine Falcon, Yellow-Billed Cuckoo, Summer Tanager, and southwestern willow 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 8 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 9 of 36 1 flycatcherSouthwestern Willow Flycatcher make their homes in the Colorado River 2 watershedWatershed. 3 13.16. The scarcity of water in the deserts of the Southwest make the Colorado River 4 5 WatershedEcosystem, in particular its watershed, vital for several amphibian species 6 including the Colorado River toad, lowland leopard frogToad, Lowland Leopard 7 Frog, and the relict leopard frogRelict Leopard Frog. Development and water 8 diversion endanger these rare desert amphibians. 9 14.17. Many of the West’s most recognizable mammals depend on the Colorado River 10 11 WatershedEcosystem, in particular its watershed, for water and to sustain adequate 12 food sources. Gray wolves, grizzly bear, black bear, mountain lions, coyotesWolves, 13 Grizzly Bear, Black Bear, Mountain Lions, Coyotes, and lynxLynx walk the banks of 14 the Colorado River. Elk, mule deerMule Deer, and bighorn sheepBighorn Sheep live 15 in the Colorado River Basin’s forests. Beavers, river ottersRiver Otters, and 16 17 18 19 20 21 muskratsMuskrats live directly in the River’s flow as well as in streams and creeks throughout the Colorado River Basin. 15. The Colorado River provides water for close to 40 million people and irrigates nearly 4 million acres of American and Mexican cropland. 16.18. In 1922, the Colorado River Compact allocated the River’sPlaintiff Colorado 22 23 River Ecosystem’s water between 7seven states (Colorado, New Mexico, Utah, 24 Wyoming, Nevada, Arizona, and California). The Compact set the River’s annual 25 average at 15 million acre -feet (“mafMAF”) and used this number to distribute water 26 among the states. Between 1914-1923, the River’s annual average was 18.8 million 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 9 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 10 of 36 1 acre feetMAF which is the wettest recorded ten-year period of the last 100 years. The 2 River now averages 14.7 million acre feetMAF annually. 3 17.19. Thirty-four (34) Native American reservations exist within the Colorado River 4 5 Basin, many of whom seek newwith many tribal nations within the Basin still seeking 6 quantified water rights not contemplated in the Colorado River Compact. In 1944, the 7 International Boundary Water Commission facilitated a treaty between the United 8 States and Mexico which granted Mexico 1.5 million mafMAF annually. 9 18.20. Agriculture uses the vast majority of the Colorado’sColorado River’s water. In 10 11 2012, 78% of the Colorado’sColorado River’s water was used for agriculture alone. 12 Forty-five percent (45%) of the water is diverted from the Colorado River 13 BasinEcosystem, which spells disaster for Colorado River Basin ecosystems. Major 14 cities that rely on these trans-Basin diversions include Denver, Los Angeles, and Salt 15 Lake City. 16 17 18 B. DEEP GREEN RESISTANCE AND DEEP GREEN RESISTANCE MEMBERS AS NEXT FRIENDS 19 21. Next Friends and Guardians live in and interact with the Colorado River Ecosystem, 20 and, therefore, are also part – the human part – of the Colorado River Ecosystem. 21 22. As the human part of the Colorado River Ecosystem, next friends and guardians are 22 23 capable of speaking through words on behalf of the natural communities that 24 comprise the Colorado River Ecosystem. The members of the human community of 25 the Colorado River Ecosystem who have chosen to facilitate the Ecosystem’s 26 appearance in court, demonstrate a significant relationship with, and dedication to, the 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 10 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 11 of 36 1 Colorado River Ecosystem. Like any next friend or guardian, they are bound to act in 2 her best interests and to advocate for her inherent and constitutionally-secured rights. 3 20.23. Members of DEEP GREEN RESISTANCE (“DGR”) serve as “next friends,” for, 4 5 and guardians of, the Colorado River Ecosystem. DGR is a worldwide, membership- 6 based, grassroots organization rooted in the truth that all life is sustained by soil, air, 7 water, and countless natural communities of living creatures. Because ecosystems 8 sustain life, DGR recognizes that the needs of ecosystems are primary and DGR is 9 committed to protecting vulnerable ecosystems across the planet. DGR, as shown 10 11 12 infra, has exemplified a long-standing history of responsible care for the Colorado River Basin. 13 21.24. Next Friend and Guardian DEANNA MYERMEYER is a member of DGR and 14 DGR’s Southwest Coalition and resides at 1680 M Hwy 67 Sedalia, CO 80135. 15 22.25. Next Friend and Guardian JENNIFER MURNAN is a member of DGR and 16 17 18 DGR’s Southwest Coalition and resides at 5125 Ute Hwy Longmont, CO 80503. 23.26. Next Friend and Guardian FRED GIBSON is a member of DGR and DGR’s 19 Southwest Coalition and resides at 6830 Dream Weaver Dr Colorado Springs, CO 20 80923 21 24.27. Next Friend and Guardian SUSAN HYATT is a member of DGR and DGR’s 22 23 24 Southwest Coalition and resides at 457 Walker St Moab, UT 84532. 25.28. Next Friend and Guardian WILL FALK is a member of DGR and DGR’s 25 Southwest Coalition and resides at 371 N 200 E Heber City, Utah 84032. Mr. Falk 26 recently traveled the waters of the Colorado River. 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 11 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 12 of 36 1 2 3 26.29. DEEP GREEN RESISTANCE (DGR) is a social and environmental justice organization formed in 2011. Over the past 6six years, DGR has grown to include members across the nation and worldwide. 4 5 27.30. DGR is committed to the principle that the soil, the air, the water, the climate, and 6 the food we eat, are created by complex communities of living creatures like those 7 creating the Colorado River. The needs of these living communities, worldwide, are 8 primary. Similarly, the needs of the Colorado River, in the American Southwest, are 9 primary. Local, state, and national jurisprudence must emerge from a humble 10 11 12 relationship with the living communities which give us life. 28.31. DGR engages in a diversity of tactics to protect ecosystems. This includes 13 building public awareness of the interconnectedness of life, the creation and 14 distribution of ecological and political analysis in media worldwide, fundraising to 15 support grassroots campaigns, organizing conferences to bring the most talented 16 17 minds of the environmental and social justice movements together to discuss strategy, 18 developing activist training programs, and conducting non-violent, civil disobedience 19 to confront ecological violence. 20 21 32. DGR members recently formed an organization – Deep Green Foundation (“DGF”) – and incorporated as a 501(c)(3) in California. 22 23 29.33. Aside from legal definitions, DGR conducts itself as an organization by: (1) 24 publishing by-laws which govern its activities; (2) operating a process for gaining 25 membership which includes a written application and interview; and by (3) 26 conducting an active membership maintenance program where members must either 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 12 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 13 of 36 1 pay monthly dues or file a quarterly written proposal detailing the work the member 2 plans on doing within DGR’s mission. 3 30.34. SOUTHWEST COALITION is a subcommittee of Deep Green Resistance 4 5 6 7 8 9 specifically focused on preserving the Colorado River and the Colorado River Ecosystem. 31.35. A number of DGR members live in the Colorado River’s drainage basin, or live in communities who depend on the Colorado River. These include members who live in Moab, UT; Heber City, UT; Boulder, CO; Colorado Springs, CO; and Sedalia, CO. 10 11 12 These members form the majority of DGR’s SOUTHWEST COALITION. 32.36. Relevant SOUTHWEST COALITION Members are listed individually herein as 13 “next friends” of the natural communities creating the Colorado River: Deanna 14 Meyer, Jennifer Murnan, Fred Gibson, Michael Carter, Susan Hyatt, and Will Falk. 15 33.37. In 2015, DGR SOUTHWEST COALITION officially committed to protecting 16 17 water as its primary focus in a public document titled, “Water: Southwest Coalition 18 Statement of Commitment and Call for Allies.” The health of the Colorado River 19 was prioritized in this document. 20 21 34.38. The document states, “More than any other area of North America, the Southwest faces water shortages just as demands for water increase…Deep Green Resistance 22 23 chapters across the Southwest recognize the imminent catastrophe. We view the 24 protection of ground and surface water as critically important. We declare water 25 preservation and justice as our primary focus…” 26 27 35.39. In 2013, prior to DGR SOUTHWEST COALITION’s publication of this document, DGR formed an alliance with members of the Ely Shoshone Tribe and the 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 13 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 14 of 36 1 Great Basin Water Network to oppose the Southern Nevada Water Authority’s 2 ((“SNWA)”) Groundwater Development Project. The Project, which has still failed to 3 gain the necessary permits, would pump 27 billion gallons of groundwater from 4 5 southeastern Nevada and transport it by pipeline to service Las Vegas. A significant 6 portion of this water naturally flows into the Colorado River through the White and 7 Moapa Rivers. Stopping SNWA protects billions of gallons of the lower 8 Colorado’sColorado River’s water. 9 36.40. In opposition to the SNWA Groundwater Development Project, DGR members 10 11 organize an annual Sacred Water Tour to show the public the natural and human 12 communities that will be destroyed if the Project is approved. Included on this tour 13 are several areas within the Colorado River Drainage Basin. The 2017 Sacred Water 14 Tour was the event’s 4thfourth edition. Additionally, DGR members have engaged in 15 a public awareness campaign about the Project with news and opinion articles in local 16 17 18 19 20 21 and national media platforms; and through radio interviews and podcasts, videos, and photo journals. 37.41. In 2015, in conjunction with DGR SOUTHWEST COALITION’s Water Statement, several DGR members formed the Pinyon-Juniper Alliance to oppose the Bureau of Land Management’s and U.S. Forest Service’s “pinyon-juniper treatment 22 23 projects.” These projects, happening across the Colorado River Basin, clearcut 24 millions of acres of old-growth pinyon-juniper forests to open rangeland for livestock 25 grazing and to clear the way for mine expansions. Pinyon-juniper deforestation 26 contributes to desertification and causes precious high desert topsoil and surface 27 pollution to wash into the Colorado River. 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 14 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 15 of 36 1 2 3 38.42. The Pinyon-Juniper Alliance circulated a petition asking BLMthe Bureau of Land Management to place a moratorium on pinyon-juniper treatment projects while conducting additional research into how, among other things, deforestation affected 4 5 the Colorado River. The petition gained over 61,787 signatures. DGR members are 6 also involved in organizing experts in the scientific and ecologic communities to 7 speak out against pinyon-juniper deforestation. DGR members wrote a widely-shared 8 essay series about pinyon-juniper deforestation, made videos, and gave radio 9 interviews on the topic. 10 11 39.43. DGR SOUTHWEST COALITION recently approved a plan to build a water 12 protection and climate change action campaign in Northeastern Utah. The plan targets 13 oil and natural gas hydraulic fracturing ((“fracking)”) processes around the Duchesne 14 River which is a major tributary of the Colorado River. Fracking is known to pollute 15 ground and surface water sources. The plan also targets the yellow crude oil refining 16 17 process in Northeastern Utah which involves heated oil tanker trucks carrying 18 volatile, toxic oil along highways running near creeks, streams, and the Duchesne 19 River, which all empty into the Colorado River. An educational component of the 20 plan seeks to illustrate how climate change threatens the snowpack that feeds the 21 Colorado River and how fracking produces toxic runoff that may find its way to the 22 23 24 River. C. OWEN LAMMERS, LIVING RIVERS EXECUTIVE DIRECTOR, AS NEXT FRIEND 25 26 27 44. OWEN LAMMERS serves as “next friend,” for, and guardian of, the Colorado River Ecosystem. 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 15 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 16 of 36 1 2 3 45. Next Friend and Guardian OWEN LAMMERS is the Executive Director of Living Rivers, a.k.a. Colorado Riverkeeper. 46. In 1999, Mr. Lammers co-founded the Colorado River advocacy group Living Rivers, 4 5 which empowers a movement to realize social-ecological balance within the Colorado 6 River Watershed. He has served as its executive director from the start, traveling the 7 Basin seeking partners to influence Colorado River management policy toward 8 fulfilling this mission. Mr. Lammers resides in Moab, Utah. 9 47. Living Rivers is a Waterkeeper Alliance member organization with jurisdiction in the 10 11 Colorado River Watershed. Waterkeeper Alliance is a nonprofit solely focused on 12 clean water that preserves and protects water by connecting local Waterkeeper 13 Organizations and Affiliates worldwide. Its goal is drinkable, fishable, swimmable 14 water everywhere. 15 48. Because of Mr. Lammer’s significant relationship with, and dedication to, the 16 17 18 Colorado River Ecosystem, he is qualified to serve as next friend. D. JOHN WEISHEIT, THE “COLORADO RIVERKEEPER,” AS NEXT FRIEND 19 20 21 22 23 24 49. JOHN WEISHEIT serves as “next friend,” for, and guardian of, the Colorado River Ecosystem. 50. Next Friend and Guardian JOHN WEISHEIT is the person designated as the on-thewater “keeper” per Waterkeeper Alliance policies. In other words, Mr. Weisheit is the “Colorado Riverkeeper.” 25 26 27 28 51. Mr. Weisheit is 63 years old and has enjoyed the Colorado River and its tributaries since childhood. For 30 years, he has lived in Moab, Utah, a Colorado River town. Mr. Weisheit began his training as a professional river guide in 1980 and continues to AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 16 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 17 of 36 1 lead river trips that support scientific research and public education, in fulfillment of 2 Colorado Riverkeeper’s mission statement. 3 52. After 12 years of research, Mr. Weisheit co-authored a book called Cataract Canyon: 4 5 6 7 8 a human and environmental history of the rivers in Canyonlands, published by University of Utah Press. 53. Because of Mr. Weisheit’s significant relationship with, and dedication to, the Colorado River Ecosystem, he is qualified to serve as next friend. 9 10 11 12 E. DEFENDANT JOHN W. HICKENLOOPER IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF COLORADO 54. Defendant John W. Hickenlooper is the Governor of the State of Colorado, and is 13 being sued in his official capacity as the executive of the State. Governor 14 Hickenlooper is required to ensure that all laws of the State are faithfully executed. 15 COLO. CONST. art. IV § 2. As Colorado’s Chief Executive, Governor Hickenlooper 16 17 is a proper defendant to actions to enjoin or invalidate a State statute. See Ainscough 18 v. Owens, 90 P.3d 851, 858 (Colo. 2004) (“The Governor of Colorado is unique in 19 that he is the ‘supreme executive,’ and it is his responsibility to ensure that the laws 20 are faithfully executed. Colo. Const. art IV, § 2 . . . Therefore, when a party sues to 21 enjoin or mandate enforcement of a statute, regulation, ordinance, or policy, it is not 22 23 24 only customary, but entirely appropriate for the plaintiff to name the body ultimately responsible for enforcing that law.”). 25 55. Because the Colorado River Ecosystem seeks prospective injunctive relief against 26 Governor Hickenlooper in his official capacity, immunity under the Eleventh 27 Amendment of the United States Constitution does not apply. 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 17 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 18 of 36 1 2 40.56. The Governor’s Office is located at 136 State Capitol Building, Denver, Colorado, 80203. 3 4 IV.III. JURISDICTION and VENUE 5 6 7 8 9 30.57. Diversity is extant between Plaintiff and Defendant so that jurisdiction is proper pursuant to 28 U.S.C. § 1332. 31.58. This Court is vested with original jurisdiction over thesePlaintiff’s federal claims by operation of 28 U.S.C. §§ 1331 and 1343. 10 11 32.59. This Court is vested with authority to grant the requested declaratory judgment by 12 operation of 28 U.S.C. §§ 2201 and 2202, and pursuant to Federal Rule of Civil 13 Procedure 57. 14 15 33. Venue is proper in the United States District Court for the District of Colorado under 28 60. U.S.C. § 1391(b), in that the events giving rise to the claim occurred within the 16 17 district. 18 19 IV. BACKGROUND OF CLAIMS 20 21 35. Life is created by complex natural communities of living creatures in ecosystems. Water, 22 23 air, soil, climate, and the food we eat depend on natural communities. The needs of these 24 communities are primary; individual morality, institutional morality, and Law must 25 emerge from a humble relationship with these natural communities. True sustainability is 26 impossible without such a relationship. 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 18 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 19 of 36 1 2 3 36.35. For the vast majority of human history, humans lived in humble relationships with natural communities. We developed traditional cultures that were rooted in the radical interconnectedness of all living beings. Along with other teachings, these cultures 4 5 6 insisted upon the inherent worth of the natural communities who give us life. 37.36. The dominance of a culture that defines Nature as property enables its destruction. 7 Meanwhile, the planet is on the verge of total collapse. To avert collapse, the destruction 8 must stop. For the destruction to stop, institutions within the dominant culture must 9 recognize the inherent worth of the natural communities who give us life. If American 10 11 courts do not recognize the inherent worth of natural communities, the dominant culture 12 will not change, and collapse will only intensify. American courts must recognize the 13 legally enforceable rights of ecosystems and nature for those reasons. 14 15 38. The concept that nature should have the right to sue for its own protection has been recognized by members of the United States Supreme Court. In his dissenting opinion in 16 17 the landmark environmental law case, Sierra Club v. Morton, 405 U.S. 727 (1972), 18 Justice Douglas argued that "inanimate objects" should have standing to sue in court: 19 37. Contemporary public concern for protecting nature's ecological equilibrium should lead 20 to the conferral of standing upon environmental objects to sue for their own preservation. 21 22 23 24 40.38. As a practical matter, the difficulty in recognizing this equitable concept (of conferring standing and rights on Naturalnatural entities) arises from the fact that nature-– which any of us who have spent a day in the RockiesRocky Mountains or along Thethe 25 26 27 Colorado River would never describe as “inanimate”—” – does not have the ability to hire a law firm, actively participate in its representation, or testify in Courtcourt. (One 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 19 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 20 of 36 1 shudders at the idea of nature testifying against us. That said, in many real ways, it is 2 testifying against us right now.) 3 41.35. But as Justice Douglas stated in his dissent, inanimate objects who do not have 4 5 the ability to testify themselves are commonly parties in litigation. A ship has a legal 6 personality, a fiction found useful for maritime purposes. The corporation, sole - a 7 creature of ecclesiastical law –, has been deemed to be an acceptable adversary and large 8 fortunes ride on its cases. The ordinary corporation has been repeatedly recognized as a 9 "person" for purposes of constitutional protection and enforcement. 10 11 42.35. Corporate rights provide an instructive analogy. The Colorado River is 60 to 70 12 million years old and has enabled, sustained, and allowed for human life for as long as 13 human life has been extant in the Western United States, yet. Nonetheless, the Colorado 14 River has no rights or standing whatsoever to defend itself and ensure its existence; 15 while. Yet, a corporation, that can be perfected in fifteen minutes with a credit card, can 16 17 own property,; issue stock,; open a bank account,; sue or defend in litigation,; form and 18 bind contracts,; claim Fourth Amendment guarantees, due process, and equal protection,; 19 hold religious beliefs; and perhaps most famously, invest unlimited amounts of money in 20 support of its favorite political candidate. See Citizens United v. Federal Election 21 Commission, 130 S. Ct. 876, 903 (2010). See also, Burwell v. Hobby Lobby Stores, Inc., 22 23 24 134 S. Ct. 2751, 2759 (2014). 43.35. The American system of law is replete with doctrines, examples, and solutions 25 with regard to when a party cannot bring suit itself and requires another to stand in its 26 stead, including guardian ad litems, parens patriae, executors who can bring suits on 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 20 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 21 of 36 1 behalf of an estate, and trustees. The fiduciary relationship in which one party can litigate 2 in the best of interests of another party has long been recognized by U.S. courts. 3 35. It is within the Court’s authority to recognize that Plaintiff Colorado River Ecosystem 4 enjoys rights, including those belonging to “persons.” 5 36. It is courts that have found the rights of corporations in the U.S. Constitution, even 6 7 though corporations are not mentioned anywhere in the Constitution. And, it is also the 8 courts who can and must recognize the rights of ecosystems and find that they are 9 persons, who enjoy legal status and constitutional protections. 10 37. The recognition of the Colorado River Ecosystem as a “person” is far less of a stretch 11 than bestowing upon inanimate corporations the status of personhood. 12 38. Recognizing the Colorado River Ecosystem as a “person” is indeed no stretch at all. It is 13 14 dictated by the logic that ecosystems are living, and that human life is inextricably 15 intertwined with, and dependent upon, ecosystems. Honoring this symbiotic relationship 16 is much more profound than the idea that corporations are made up of people and that 17 they, therefore, enjoy many of the same rights. 18 44.39. 19 20 One does not have to wax poetic to reasonably assert that a natural entity that has existed for millions of years as a complex ecosystem, and which created the Grand 21 Canyon through its natural flow, has, in many ways, respectfully, more volition or will 22 than some of the dependent persons and entities that are currently represented by 23 guardian ad litems and executors in our courts of law. 1 24 25 26 27 1 In his 1797 Transaction of the American Philosophical Society, Thomas Jefferson, the chief framer of our constitutional rights, stated: 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 21 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 22 of 36 1 2 3 45.35. For that reason and others, courts around the world have come to legally recognize that natural entities on which life depends have the right to exist, which in our law is cognized as the standing, and the right, to bring actions to be heard before our 4 5 6 courts. 46.35. On July 27, 2014, Te Urewera, an 821-square mile area of New Zealand, was 7 designated as a legal entity with “[A]ll the rights, powers, duties and liabilities of a legal 8 person.” Section 11(1), Te EreweraUrewera Act of 2014. 9 47.35. Te Urewera can now bring causes of action on its own behalf without having to 10 11 12 prove direct injury to human beings. 48.35. In 2008, the country of Ecuador amended itspromulgated a new national 13 constitution to establishwhich enshrines the rights of ecosystemsnature within the country 14 to exist, regenerate, evolve, and be restored. Those constitutional provisions have 15 triggered several enforcement cases protecting the rights of rivers and other ecosystems 16 17 18 in the countryEcuador. 49.35. In November of 2016, Colombia’s Constitutional Court found that the Atrato 19 River, including its tributaries and watershed, is “an entity subject to rights to protection, 20 conservation, maintenance and restoration.” In addition, the Court decreed that the 21 Colombian State shall “exercise legal guardianship and representation of the rights of the 22 23 24 river in conjunction with the ethnic communities that inhabit the Atrato river basin.” In its ruling, the courtCourt explained: 25 26 27 28 The movements of nature are in a never ending circle. The animal species which has once been put into a train of motion, is still probably moving in that train. For if one link in nature's chain might be lost, another and another might be lost, till this whole system of things should vanish by piece-meal; a conclusion not warranted by the local disappearance of one or two species of animals, and opposed by the thousands and thousands of instances of the renovating power constantly exercised by nature for the reproduction of all her subjects, animal, vegetable, and mineral. AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 22 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 23 of 36 1 2 3 4 5 6 that human populations are those that are interdependent on the natural world – not the other way around- and that they must assume the consequences of their actions and omissions in relation to nature. It’s about understanding this new socio-political reality with the aim of achieving a respectful transformation with the natural world and its environment, just as has happened before with civil and political rights…economic, social and cultural rights…and environmental rights...Now is the time to start taking the first steps towards effectively protecting the planet and its resources before it is too late or the damage is irreversible, not only for future generations but for the entire human species. Const. Ct. of Colombia, Judgment T-622 DE 2016. 7 8 9 10 11 50.36. On March 20, 2017, the High Court of Uttarakhand at Nainital, in the State of Uttarakhand in northern India, issued a ruling declaring that the GangesGanga and Yamuna Rivers are “legal persons/living persons.” This comes after numerous rulings by the courtCourt which found that while the rivers are “central to the 12 13 existence to half of Indian population and their health and well being,” they are 14 severely polluted, with their very existence in question. The courtCourt declared that 15 throughout India’s history, it has been necessary to declare that certain “entities, 16 living inanimate, objects or things” be declared as “juristic person[s].” In the case of 17 the Ganga and Yamuna Rivers, the courtCourt explained that the time has come to 18 19 20 21 22 recognize them as legal persons “in order to preserve and conserve” the rivers. (Writ Petition (PIL) No.126 of 2014). 51.37. Over three dozen municipalities within the United States, including the City of Pittsburgh, have adopted municipal laws recognizing the legally enforceable rights of 23 24 25 26 27 28 ecosystems and nature, and the authority of municipal residents to bring suits in the name of individual ecosystems. 52.38. TheThis Court will rightly concern itself with the question of judicial efficiency with regard to the possibility, which opposing party will almost certainly present, of AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 23 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 24 of 36 1 an unwieldy amount of law suits suddenly being brought on behalf of the Colorado 2 River and the Colorado River Ecosystem by individuals who are well-intentioned and 3 rightly concerned, but who lack the direct relationship and stewardship of the 4 Colorado River. 5 53.39. This concern is easily addressed by requiring that the filer of the suit evidence a 6 7 relationship to Thethe Colorado River, so that the filer is provably capable of 8 representing its best interests. The same operation of law occurs in class action 9 certifications with regard to certifying representative plaintiffs and class counsel as 10 well as in any adjudication in which a person is appointed guardian ad litem.2 11 12 13 14 15 16 V. 17 COUNTS IN THE NATURE OF DECLARATORY JUDGMENT 18 COUNT ONE 19 : DECLARATORY JUDGMENT (LACK OF LEGAL RECOGNITION VIOLATES THE DUE PROCESS AND PETITION CLAUSE RIGHTS OF PLAINTIFF COLORADO RIVER ECOSYSTEM AS PROTECTED BY THE FIRST AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION) 20 21 22 23 53.40. All prior paragraphs of this Amended Complaint are incorporated herein. 24 25 26 27 28 2 For purposes of judicial economy, Fed. R. Civ. P 53 empowers the Court to appoint a special master. In cases where identifiable natural entities such as the Colorado River are being threatened or facing extinction, an R.53 appointment could be in place to screen claims brought in the name of the Colorado River Ecosystem. AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 24 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 25 of 36 1 2 3 54.41. The Colorado River Ecosystem is essential to life – human and non-human – in the American Southwest. 55.42. Threats to the Colorado River Ecosystem are threats to life. 4 5 6 56.43. Because threats to the Colorado River Ecosystem are threats to life, the Colorado River Ecosystem must possess the ability to protect itself from threats to its survival. 7 44. The Fifth and Fourteenth Amendments of the U.S. Constitution guarantee that the 8 government shall not deprive any person of an interest in “life, liberty, or property 9 without due process of law.” U.S. Const. amend. XIV, § 1. 10 11 45. Procedural due process as secured by the Fourteenth Amendment applies where there 12 is a deprivation of life or liberty. Plaintiff Colorado River Ecosystem is being 13 deprived of its inherent rights to exist, flourish, and naturally evolve, and of its rights 14 to life and liberty 15 46. Procedural due process guarantees fair procedures, which, in this case, means legal 16 17 18 19 20 21 recognition of the Colorado River Ecosystem. 47. The Petition Clause of the First Amendment of the U.S. Constitution protects the right to petition the court for redress of grievances. 57.48. The ability to protect itself, and secure its life and liberty, requires that thePlaintiff Colorado River Ecosystem have access to the courts, and that the courts recognize 22 23 that the Colorado River Ecosystem possesses rights. 24 58.49. Recognition of the capacity of Plaintiff Colorado River Ecosystem to possess 25 rights requires a recognition that the Colorado River Ecosystem is a “person” for 26 purposes of asserting those rights. The reason this is so is because the word “person” 27 is used in the U.S. Constitution and it is generally “persons” who may appear in court. 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 25 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 26 of 36 1 2 3 50. RecognitionThe failure to recognize Plaintiff Colorado River Ecosystem as a “person” requires that courts find thatthe real party in interest violates its due process and petition clause rights. 4 5 51. The Colorado River Ecosystem may defend and enforce its rights through “next 6 friends,” or guardians, may defend and enforce those rightswho are acting on its 7 behalf and in its best interests. Next friends live in and interact with the Colorado 8 River Ecosystem and are therefore also part – the human part – of the Ecosystem. 9 52. There is a case and controversy, and legal uncertainty, as to whether the Colorado 10 11 River Ecosystem. may appear in court as the real party in interest. 12 59.53. The Defendant fails and refuses to recognize the rights of the Colorado River 13 Ecosystem, including by refusing to recognize the Ecosystem’s right to appear in 14 court. 15 60.54. Therefore, the “next friend” Plaintiffs, requestPlaintiff Colorado River 16 17 Ecosystem, appearing in this case through its next friends, requests that this Court 18 declare that the Colorado River Ecosystem is a “person” capable of possessing rights 19 and securing those rights through enforcement and defense of those rights, and that 20 the Plaintiffs may serve as “next friends” to seek that relief. 21 22 23 COUNT TWO: DECLARATORY JUDGMENT RELIEF: THE(RECOGNITION OF PLAINTIFF COLORADO RIVER ECOSYSTEM’S RIGHTS) 24 61.55. All prior paragraphs of this Amended Complaint are incorporated herein. 25 62.56. As a “person” pursuant to the law, the Colorado River Ecosystem must possess 26 certain specific rights to protect and defend itself. 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 26 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 27 of 36 1 2 3 63.57. Basic rights necessary for the protection of the Colorado River Ecosystem inherently include the Colorado River Ecosystem’s right to exist, the right to flourish, the right to regenerate, the right to be restored, and the right to naturally evolve. 4 5 58. Lacking those The substantive Due Process Clause of the Fourteenth Amendment of 6 the U.S. Constitution further secures these inherent rights by protecting the right to 7 life. The substantive due process clause protects the rights of the Colorado River 8 Ecosystem essential to its life. 9 59. Moreover, the substantive Due Process Clause of the Fourteenth Amendment is 10 11 designed to prevent the arbitrary exercise or abuse of government power. The failure 12 to recognize the rights of living ecosystems, such as the Colorado River Ecosystem, 13 while recognizing individual and corporate rights, is arbitrary and an abuse of power. 14 64.60. If the Colorado River Ecosystem were to lack its basic rights, the Colorado River 15 Ecosystem’s its status as a “person” would be meaningless, because it would be 16 17 18 19 20 21 unable to secure and protect thoseits basic rights, and thus, would be unable to protect its life and existence. 61. The Defendant fails and refuses to recognize the rights of the Colorado River Ecosystem, including by refusing to recognize the Ecosystem’s right to life and liberty, and to exist, flourish, and naturally evolve. The Defendant’s policy and 22 23 24 25 26 27 practice of failing and refusing to recognize the fundamental rights of the Colorado River Ecosystem violates those rights and the Fourteenth Amendment. 62. There is an actual case and controversy, and legal uncertainty, as to whether the Colorado River Ecosystem has inherent rights and rights protected by the substantive Due Process Clause of the Fourteenth Amendment. 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 27 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 28 of 36 1 2 3 63. The Defendant maintains, through its action and inaction, that the Colorado River Ecosystem does not possess such rights, while Plaintiff Colorado River Ecosystem maintains that it does. 4 5 65.64. Therefore, the Plaintiffs askColorado River Ecosystem, by and through its next 6 friends, asks this Court to declare that the Colorado River Ecosystemit has a right to 7 exist, flourish, regenerate, be restored, and naturally evolve, and to enjoin the 8 Defendant from engaging in further policy and practice that fails and refuses to 9 recognize the fundamental rights of the Colorado River Ecosystem. 10 11 12 COUNT THREE: DECLARATORY JUDGMENT: STATE ACTIONS VIOLATING ECOSYSTEM RIGHTS 13 14 (VIOLATION OF PLAINTIFF COLORADO RIVER ECOSYSTEM’S RIGHT TO EQUAL PROTECTION) 15 16 66.65. All prior paragraphs of this Amended Complaint are incorporated herein. 17 66. The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution 18 guarantees all “people” the right to equal protection of the laws. 19 20 67. Corporations operating in the State of Colorado have been afforded the rights of 21 “persons,” including the right to appear in court and the rights secured by the First 22 and Fourteenth Amendments, while the Colorado River Ecosystem has been denied 23 such rights. 24 68. Moreover, by recognizing the “rights” of corporations, but refusing to recognize the 25 26 27 rights of the Colorado River Ecosystem, Defendant has violated the Colorado River Ecosystem’s equal protection rights. 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 28 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 29 of 36 1 2 3 69. Defendant has and continues to refuse to recognize the rights of Plaintiff Colorado River Ecosystem, while recognizing the rights of corporations and corporate interests. 70. Defendant State of Colorado, for instance, maintains and enforces laws chartering 4 5 6 corporations and giving them legal recognition. 71. The failure to recognize the rights of the Colorado River Ecosystem, while 7 recognizing, and, in fact, elevating corporate rights above the Ecosystem’s rights, 8 violates the Colorado River Ecosystem’s right to equal protection. 9 72. Therefore, Plaintiff Colorado River Ecosystem, by and through its next friends, asks 10 11 this Court to declare that it is a “person” capable of possessing rights and securing 12 those rights through enforcement and defense of those rights; and to declare that the 13 Defendant’s recognition of corporate rights, while failing to recognize the 14 fundamental rights of the Colorado River Ecosystem, violates the Equal Protection 15 Clause of the Fourteenth Amendment. 16 17 18 19 20 21 COUNT FOUR: DECLARATORY JUDGMENT: STATE ACTIONS VIOLATING THE RIGHTS OF PLAINTIFF COLORADO RIVER ECOSYSTEM 73. All prior paragraphs of this Amended Complaint are incorporated herein. 67.74. The Colorado River Ecosystem possesses the right to exist, flourish, regenerate, 22 23 24 25 be restored, and naturally evolve. 68.75. The rights of the Colorado River Ecosystem establish duties on behalf of the State of Colorado, and all other governments, to respect those rights. 26 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 29 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 30 of 36 1 69.76. Actions taken by Defendant State of Colorado, to approve permits and issue other 2 regulatory approvals for certain actions regarding the Colorado River Ecosystem, 3 may violate those rights. 4 5 6 7 8 9 77. The substantive Due Process Clause of the Fourteenth Amendment is designed to prevent the arbitrary exercise or abuse of government power. 78. The Colorado River Ecosystem, like individuals and corporations, must be able to protect, enforce, and defend its rights. Without such recognition, degradation and harm to Plaintiff Colorado River Ecosystem will continue at the current alarming rate 10 11 12 13 14 15 and the Defendant will continue to favor corporate rights, while failing to recognize the rights of the Colorado River Ecosystem. 70.79. Examples of the failure of Defendant to recognize rights of Plaintiff Colorado River Ecosystem, and the harm caused by this failure, are many. In August 2015, the portal of the Gold King Mine was breached, releasing an estimated three million 16 17 gallons of mine wastewater and 880,000 pounds of heavy metals down the Animas 18 and San Juan riversRivers (two of the Colorado’sColorado River’s tributaries). This 19 waste flowed into the Colorado River and injured downriver communities. The spill 20 is part of decades of toxic drainage from mines at the headwaters of the Animas River 21 near Silverton, CoColorado. 22 23 71.80. Before the spill, the State of Colorado and Sunnyside Gold Corporation reached a 24 decision to shut down a water treatment plant in favor of placing bulkheads at the 25 entrance of Sunnyside’s drainage point, the American Tunnel. Most researchers 26 familiar with the Animas watershed believe the bulkheads caused the mine pool of 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 30 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 31 of 36 1 the Sunnyside Mine to back up and cause other mines including the Gold King to 2 discharge acidic water. 3 72.81. Recently, the United StatesU.S. Supreme Court denied the State of New Mexico’s 4 5 motion for leave to file a bill of complaint against the State of Colorado for harms 6 caused. The Court did not write an opinion with the denial. The U.S. Environmental 7 Protection Agency (“EPA”) decided to list the Upper Animas Mining District on the 8 Superfund National Priorities list.List (“NPL”). Apparently, the Court believes that 9 EPA’s decision to list the District on the NPL completely resolves the harms that 10 11 12 13 14 15 EPA, the State of Colorado, and others wrought on the Animas River, the Colorado River, and downstream. 73.82. The underlying policy problem here is the American legal system’s insistence that the EPA providesand state environmental regulatory agencies provide adequate protections, and isthat environmental laws and regulatory agencies provide the only 16 17 18 proper mechanism for gaining recourse for injuries to ecosystems. 74.83. Over-Allotment: One reason the Colorado River rarely reaches the sea is the 19 compacts and laws that regulate how much water can be diverted from the riverRiver 20 allow humans to take more water from the riverRiver than physically exists. The State 21 of Colorado takes more water from the riverRiver than any of the other jurisdictions, 22 23 24 save California. 75.84. The State of Colorado is party to the 1922 Colorado River Compact, the 1948 25 Upper Colorado River Compact, and a related set of laws, court decrees, and an 26 international treaty collectively known as the “Law of the River.” The parties to the 27 1922 compactCompact assumed that the river’sRiver’s flow would remain at a 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 31 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 32 of 36 1 reliable 17 million acre-feet of water per year. But, hydrologists now know this 17 2 million acre-feetMAF per year standard represented an unusually high flow and was a 3 mistake. Streamflow records showed that the Colorado River’s flow was only 9 4 5 6 7 8 9 million acre-feetnine MAF in 1902, for example. From 2000-2016, the River’s flow only averaged 12.4 million acre-feetMAF per year. 76.85. Regardless, the 1922 Compact was enacted over calls for time-limited allocations that would allow for the parties to reassess allotments. The Compact’s framers divided, in perpetuity, 15 million-acre feet.MAF. So, for most of the last 16 years, the 10 11 12 13 14 15 Statesstates are legally allowed to use more of the Colorado River’s water than actually exists. 77.86. This 15 million-acre feetMAF was further divided with 7.5 million acre-feetMAF allocated to the lower basin states (Arizona, California, and Nevada) and 7.5 million acre-feetMAF allocated to the upper basin states (Colorado, New Mexico, Utah, and 16 17 18 Wyoming). 78.87. In the negotiations, the State of Colorado and the other upper basin states 19 succeeded in barring the application of the Doctrine of Prior Appropriation across 20 states lines to allocation of Colorado River water. The Doctrine of Prior 21 Appropriation is commonly known as “first in time, first in right.” In 1948, the Upper 22 23 Colorado Basin Compact was enacted between Colorado, New Mexico, Utah 24 Wyoming, and Arizona (a small part of Arizona lies in the upper basin) with 25 Colorado receiving most of the Upper Basin’s allotted 7.5 million acre-feet.MAF. 26 Colorado was allowed 51.75 percent, Utah 23 percent, Wyoming 14 percent, and 27 New Mexico 11.25 percent. The small part of Arizona received 50,000 acre-feet. 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 32 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 33 of 36 1 2 3 79.88. Dams: Another reason the Colorado River rarely reaches the sea is the presence of dams that block the river’s flow. The State of Colorado operates dams on the Colorado River including the Price-Stubb Dam, Grand Valley Diversion Dam, Windy 4 5 Gap Dam, Granby Dam, and Shadow Mountain Dam. The State also operates dams 6 on major tributaries of the Colorado River including the Blue Mesa Dam and the 7 Morrow Point Dam on the Gunnison River, the Dillon Dam and Green Mountain 8 Dam on the Blue River, and the McPhee Dam on the Dolores River. 9 80.89. The State of Colorado has constructed these dams in an effort to seize a larger 10 11 share of dwindling water supplies before that water flows downstream. 12 81.90. In addition to choking up the Colorado River, dams are disasters for downstream 13 ecosystems and endemic species. Dams are leading cause of the population collapses 14 of the Colorado River’s four species of endangered fish, the humpback chub, bonytail 15 chubHumpback Chub, Ponytail, Colorado pikeminnowPikeminnow, and razorback 16 17 sucker.Razorback Sucker. Farther downstream, the world’s most rare marine 18 mammal, the vaquita porpoiseVaquita dolphin who calls the Gulf of California home, 19 is dangerously close to extinction because the Colorado River rarely reaches the Gulf 20 of California. 21 91. The Plaintiffs areDefendant actions and inactions demonstrate that it does not 22 23 24 25 26 recognize the Colorado River Ecosystem’s rights and has acted in manner which reflects its failure to recognize these rights. 82.92. Plaintiff Colorado River Ecosystem, by and through its next friends, is asking this Court to declare these the above actions and other actions taken by the State of 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 33 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 34 of 36 1 ColoradoDefendant, and certain inaction by the State of ColoradoDefendant, capable 2 of violating the rights of the Colorado River Ecosystem. 3 93. Such prospective declaratory and injunctive relief is necessary because there is an 4 5 actual case and controversy, and legal uncertainty, as to whether the Colorado River 6 Ecosystem has rights presently recognized by the legal system and as to whether 7 Defendant actions and inactions may violate those rights. 8 9 VI. REQUEST FOR HEARING 10 11 12 83.94. Plaintiffs requestPlaintiff requests that this Honorable Court, pursuant to FRCP 13 65, grant an evidentiarya hearing as the issues herein are of importance to the public 14 interest. 15 16 17 VII. NOTICE OF NO RELATED CASES PURSUANT TO D.C.COLO.L Civ R 3.2. 18 19 20 84.95. Pursuant to D.C.COLO.L Civ R 3.2, there are no related or similar cases before any courts. This is a matter of first impression. 21 22 23 VIII. DECLARATORY RELIEF SOUGHT 24 85.96. Plaintiff the Colorado River Ecosystem seeks a declaration from this Court that: 25 a. The Colorado River Ecosystem is a “person” capable of possessing rights; 26 b. The Colorado River Ecosystem possesses the rights to exist, flourish, regenerate, be 27 restored, and naturally evolve; 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 34 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 35 of 36 1 c. That DGR members, Owen Lammers, Living Rivers Executive Director, and John 2 Weisheit, the Colorado Riverkeeper, may serve as guardians, or “next friends,” for 3 the Colorado River Ecosystem; and 4 5 d. That Plaintiff Colorado River Ecosystem is protected by the Due Process and Equal 6 Protection Clauses of the Fourteenth Amendment and the Petition Clause of the First 7 Amendment of the U.S. Constitution; 8 9 d.e. That certain activities permitted by, or carried out by, the State of ColoradoDefendant, may violate the rights of the natural communities creating the 10 11 Colorado River, and that the PlaintiffsPlaintiff may proceed to file for injunctive 12 relief to enjoin the State of ColoradoDefendant from taking action related to those 13 activities, or to force the State of ColoradoDefendant to take certain actions, as 14 violations of the rights of thePlaintiff Colorado River Ecosystem. 15 97. Plaintiff Colorado River Ecosystem further seeks to enjoin Defendant from 16 17 continuing to violate its inherent rights to exist, flourish, regenerate, be restored, and 18 to naturally evolve and its rights under the First and Fourteenth Amendments by 19 failing to recognize its legal status as a “person.” 20 21 Respectfully submitted this the 26th3rd day of SeptemberNovember 2017, 22 23 24 25 26 27 s/Jason Flores-Williams, Esq. Counsel for Plaintiff Phone: 303-514-4524 Email: Jfw@jfwlaw.net 1851 Bassett St. #509 Denver, Colorado 80202 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 35 Case 1:17-cv-02316-NYW Document 17-1 Filed 11/03/17 USDC Colorado Page 36 of 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF - 36