By Tim Lovett
In August 2021, wild rice sued the state of Minnesota.
Not wild rice producers, or a lobbying group, but wild rice itself, acting as a plaintiff in Manoomin v. Minnesota Department of Natural Resources, filed in the White Earth Band of Ojibwe Tribal Court. Manoomin, the Ojibwe word for wild rice, has the power to bring this suit because of the White Earth Band’s 2018 resolution recognizing Manoomin’s inherent legal rights. The White Earth Band of Ojibwe and several tribal members and water protectors are co-plaintiffs. The Band’s 2018 resolution recognizing Manoomin’s rights is part of the growing Rights of Nature movement, which seeks to recognize nature, natural entities, and ecosystems with rights aside from their existence as property.
Basics
The Rights of Nature legal doctrine posits that natural entities have legally enforceable rights similar to those of human beings. The underlying ethic to this movement is that nature intrinsically deserves fundamental rights. These rights vary in practice, but recent legislation and jurisprudence around the world identify nature as having such rights as the right to exist free from harm, the right to evolve, the right to flourish, and the right to seek remedy after harm. This last right is perhaps the most revolutionary, as it means nature and natural entities are increasingly able to act as plaintiffs for their own interests and have guardians represent their rights in court.
The Rights of Nature legal doctrine posits that natural entities have legally enforceable rights similar to those of human beings. The underlying ethic to this movement is that nature intrinsically deserves fundamental rights.
One appeal of the Rights of Nature movement is that it may readily provide standing for environmental protection lawsuits, which can otherwise be difficult to prove absent an economic injury. By acknowledging inherent rights of nature, entities such as streams, mountains, or forests could claim a legally sufficient injury more easily than a nonprofit or advocacy group seeking to prevent the same harm. Represented by a guardian, the natural entity could seek compensation for its own damages and relief from activity harming it in a way advocacy groups may not otherwise be able to because of their own limited interests.
Who is Promoting the Rights of Nature?
Several organizations promote the creation of more Rights of Nature laws. In the United States, two of the most prominent are the Community Environmental Legal Defense Fund (CELDF) and the Center for Democratic and Environmental Rights (CDER). Both organizations worked with the White Earth Band to develop its 2018 resolution recognizing the rights of wild rice.
Both CELDF and CDER emphasize that their missions are nothing less than the complete reorientation of contemporary views toward land, water, and natural systems. CELDF grounds its advocacy in working toward recognizing ecosystems and natural entities as “not merely property that can be owned [but as] entities that have an independent and inalienable right to exist and flourish.” 1 Similarly, CDER seeks to create a “fundamental shift in humankind’s relationship with nature,” moving from a societal mindset founded on the “use and exploitation” of nature to one of “care and protection.” 2For both CELDF and CDER, legislative recognition of the rights of nature is fundamental to their goals.
What Form does this Take?
In the United States, Rights of Nature laws often have three components: a description of the rights held by natural communities or ecosystems, the creation of standing for the entities and their representatives, and the identification of the remedy available when those rights are infringed. Cities and tribes have been the first to adopt these laws, and no state has adopted any laws giving nature or ecosystems rights.
The White Earth Reservation business committee’s 2018 resolution recognizing the rights of Manoomin follows this general pattern. First, the resolution designates Manoomin as possessing “inherent rights to exist, flourish, regenerate, and evolve” as well as to “restoration, recovery, and preservation.” 3 The resolution gives the business committee the ability to enforce Manoomin’s rights against any business entity, government, or public or private entity that violates its rights. The resolution’s remedy is the cost of restoring “the Manoomin and its habitat to their state before the violation” of Manoomin’s rights.” 4 These damages must then be paid directly to the White Earth business committee for exclusive use in restoring and protecting the Manoomin and its habitat. The 1855 Treaty Authority, a collection of treaty beneficiary members of the 1855 treaty between Chippewa Indians and the United States across Minnesota, enacted a similar resolution at the same time.
Other Rights of Nature laws are similar. Pittsburgh passed a 2010 ordinance recognizing the “Rights of Natural Communities” as part of its efforts to prevent fracking and natural gas mining within city limits. The ordinance recognized the rights of “natural communities and ecosystems [including] wetlands, streams, rivers, aquifers, and other water systems” to “exist and flourish.” 5 Any citizen of Pittsburgh can enforce these rights on behalf of these entities, with remedies measured by the cost of restoring the harmed entity to its pre-damaged state, with all payments made directly to the city of Pittsburgh for the sole purpose of restoration. 6
The city of Toledo enacted its own Rights of Nature law via a February 2019 referendum. Passing with 61 percent of the vote, the Lake Erie Bill of Rights (LEBOR) was designed to address the ever-increasing algae blooms occurring in Lake Erie, and to take proactive steps to prevent further degradation of the urban area’s watershed. LEBOR recognized Lake Erie’s right to “exist, flourish, and naturally evolve,” language very similar to the White Earth Band’s Manoomin Resolution from only a few months before. These rights were enforceable by both the city of Toledo and residents of the city against any corporation or government that violated them. Additionally, the Lake Erie Ecosystem was entitled to enforce its own rights, and LEBOR’s prohibitions, as “the real party of interest.” 7 LEBOR provided both injunctive and damage remedies, which would be measured by the “full and complete restoration of the Lake Erie Ecosystem.”
Most recently, Orange County, Florida, passed its own referendum in November 2020 which created “natural rights for the waters of Orange County” with the specific aim of lessening the pollution entering the Wekiva and Econlockhatchee rivers. Orange County, which contains Orlando and has a population of nearly 1.5 million, is the largest American entity by population to enact a Rights of Nature law.
Enforcement and its Relevant Challenges
To recognize the rights of nature via law is one thing, but to effectively enforce those rights is another matter entirely. It is hard to gauge how effective these laws will be at protecting ecosystems and natural entities, as the current jurisprudence is limited, with the first-ever lawsuit based on a Rights of Nature law filed in April 2021. This lawsuit, Wilde Cypress Branch, et al. v. Noah Valenstine, et al., is an attempt to enjoin a residential construction project from being built, with the named plaintiffs including several streams, marshes, and “all other affected Orange County Waters.” 8Charles O’Neal, president of the nonprofit Speak Up Wekiva, is the human being involved in the lawsuit.
To recognize the rights of nature via law is one thing, but to effectively enforce those rights is another matter entirely.
While still in its early stages,
Wilde Cypress Branch presents several issues that promise to reappear in future Rights of Nature enforcement cases, the most important of which may be the interface between Rights of Nature laws and the intricacies of the administrative state and current environmental enforcement regimes. The Florida Department of Environmental Protection, a defendant in the case because of its role in granting permits to the development project in question, alleges that the waters’ lawsuit is premature because the plaintiffs have not yet exhausted all administrative remedies available to them. While there is no resolution to the case yet, if natural entities are required to operate within the confines of the administrative state and are denied a right to litigate for their own harms, it is unclear how Rights of Nature will serve to act as a revolutionary approach, when nonprofits and other stakeholders could just as readily sue for procedural enforcement.
Another threat looms, both for Orange County’s bodies of water and other advocates of the Rights of Nature movement: preemption. In 2020, with the Orange County Rights of Nature law headed for a referendum, the Florida legislature amended the state’s Environmental Protection Act to explicitly ban local governments from recognizing or granting any legal rights to “a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision.”9 While not yet resolved, this intersection of local and state powers promises to be a major point of contention in any attempt to pass and litigate Rights of Nature laws.
State and local preemption is not the only threat to this movement. The Lake Erie Bill of Rights was found to be unconstitutional before Lake Erie (or its representatives) could sue anyone. The day after Toledo’s referendum established Lake Erie’s rights, a local farmer sued the city to enjoin its enactment. A federal court subsequently held LEBOR’s language to be invalid, for, among other reasons, violating the farmer’s due process for vagueness. 10 If a law is so vague that “persons of common intelligence must necessarily guess at its meaning,” a court may find it to be unconstitutional. 11 In this instance, the court held that Erie’s right to “exist, flourish, and naturally evolve” was too insubstantial for enforcement, as LEBOR did not provide any guidance as to what manner of pollution or harm was, and was not, prohibited or permitted. The city of Toledo quietly dropped its appeal, essentially leaving LEBOR for dead.
The Manoomin Resolution and Current Lawsuit
The White Earth Band’s Manoomin Resolution injects a new issue into this landscape: tribal sovereignty. The White Earth Band is not the first tribe to enact a Rights of Nature law, as Ponca and Ho-Chunk bands have previously passed similar resolutions, but it was the first to enforce such a law in tribal court. The suit is also noteworthy because it is an attempt to regulate off-reservation conduct by individuals who are not tribal members, which it does by suing the Minnesota Department of Natural Resources in White Earth’s Tribal Court. 12 The Band seeks to enjoin harm to Manoomin and asks Minnesota to recognize the plant’s right to exist, flourish, regenerate, and evolve in all lands ceded by treaty.13
The suit is partially aimed at preventing harms caused by the construction and operation of the Line 3 pipeline owned by Enbridge Inc., a project that has been at the middle of much debate over the past several years. The Manoomin lawsuit alleges, among other things, that the state of Minnesota and the DNR have failed to adequately protect bodies of water near the construction site, and that harming the water will directly harm Manoomin’s rights. Line 3 does not intersect or cross over the Band’s reservation land, but all of this construction takes place on lands tribes ceded by treaty to the United States in the 19th century. The Band alleges that as part of the treaties, it retained the usufructuary right to travel the ceded lands and continue to gather wild rice, and that the tribe retains the right to protect wild rice on those ceded lands as part of that right, and the state is required to protect it as well.
The state of Minnesota argues it is sovereignly immune from suit in tribal court and has sought to enjoin the tribal proceedings via suit in federal court. At the time of this writing, the matter is pending before the Eighth Circuit and the Tribal Court of Appeals.
Conclusion
The Rights of Nature movement is clearly still defining itself. The year 2021 saw the country’s first two lawsuits based on Rights of Nature laws, and the full power of this doctrine remains to be seen.
Tim Lovett, a litigation attorney at Maslon in Minneapolis, assists companies with their general business litigation needs, working across a wide range of industries. He received his J.D., cum laude, from the University of Minnesota Law School with a concentration in Environmental and Energy Law, and served as online articles editor of the Minnesota Law Review.
Timothy.Lovett@maslon.com
1 Community Environmental Legal Defense Fund, Rights of Nature: FAQs, https://celdf.org/rights-of-nature/faqs/.
2 Center for Democratic and Environmental Rights, Rights of Nature Timeline, https://www.centerforenvironmentalrights.org/timeline.
3 White Earth Reservation Business Committee, White Earth Band of Chippewa Indians, Resolution No. 001-19-009, Dec. 31, 2018, https://whiteearth.com/assets/files/judicial/codes/1855%20Res%20estab%20Rts%20of%20Manoomin%202018%20with%20Resolution.pdf.
4 Id.
5 City of Pittsburg, PA Code of Ordinances, Chapter 618.03(a) & (b).
6 Id. at 618.05.d.
7 Lake Erie Bill of Rights, https://www.beyondpesticides.org/assets/media/documents/LakeErieBillofRights.pdf .
8 Wilde Cypress Branch et al. v. Noah Valenstein et al., No. 2021-CA-004420-O (Fla. Cir. Ct., filed April 26, 2021).
9 Fla. Stat. Ann. § 403.412.
10 Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551 (N.D. Ohio 2020).
11 Id. at 555.
12 Manoomin v.Minnesota Department of Natural Resources, Case No. GC21-0428 (White Earth Band of Ojibwe Tribal Ct.).
13 Complaint, id.