A Lake in Florida Suing to Protect Itself

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A Lake in Florida Suing to Protect Itself

Lake Mary Jane is shallow—twelve feet deep at most—but she’s well connected. She makes her home in central Florida, in an area that was once given over to wetlands. To the north, she is linked to a marsh, and to the west a canal ties her to Lake Hart. To the south, through more canals, Mary Jane feeds into a chain of lakes that run into Lake Kissimmee, which feeds into Lake Okeechobee. Were Lake Okeechobee not encircled by dikes, the water that flows through Mary Jane would keep pouring south until it glided across the Everglades and out to sea.

Mary Jane has an irregular shape that, on a map, looks a bit like a woman’s head in profile. Where the back of the woman’s head would be, there’s a park fitted out with a playground and picnic tables. Where the face would be, there are scattered houses, with long docks that teeter over the water. People who live along Mary Jane like to go boating and swimming and watch the wildlife. Toward the park side of the lake sits an islet, known as Bird Island, that’s favored by nesting egrets and wood storks.

Like most of the rest of central Florida, Mary Jane is under pressure from development. Orange County, which encompasses the lake, the city of Orlando, and much of Disney World, is one of the fastest-growing counties in Florida, and Florida is one of the fastest-growing states in the nation. A development planned for a site just north of Mary Jane would convert nineteen hundred acres of wetlands, pine flatlands, and cypress forest into homes, lawns, and office buildings.

In an effort to protect herself, Mary Jane is suing. The lake has filed a case in Florida state court, together with Lake Hart, the Crosby Island Marsh, and two boggy streams. According to legal papers submitted in February, the development would “adversely impact the lakes and marsh who are parties to this action,” causing injuries that are “concrete, distinct, and palpable.”

A number of animals have preceded Mary Jane to court, including Happy, an elephant who lives at the Bronx Zoo, and Justice, an Appaloosa cross whose owner, in Oregon, neglected him. There have also been several cases brought by entire species; for instance, the palila, a critically endangered bird, successfully sued Hawaii’s Department of Land and Natural Resources for allowing feral goats to graze on its last remaining bit of habitat. (The palila “wings its way into federal court in its own right,” Diarmuid O’Scannlain, a judge on the U.S. Court of Appeals for the Ninth Circuit, wrote in a decision that granted the species relief.)

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Still, Mary Jane’s case is a first. Never before has an inanimate slice of nature tried to defend its rights in an American courtroom. Depending on your perspective, the lake’s case is either borderline delusional or way overdue.

“It is long past time to recognize that we are dependent on nature, and the continued destruction of nature needs to stop,” Mari Margil, the executive director of the Center for Democratic and Environmental Rights, said in a statement celebrating the lawsuit.

“Your local lake or river could sue you?” the Florida Chamber of Commerce said. “Not on our watch.”

The notion that “natural objects” like woods and streams should have rights was first put forward half a century ago, by Christopher Stone, a law professor at the University of Southern California. Stone, who died last year, was a son of the crusading journalist I. F. Stone, and as a kid, in the nineteen-fifties, he sometimes helped put out his father’s newspaper, I. F. Stone’s Weekly. In the fall of 1971, the younger Stone was assigned to teach U.S.C.’s introductory course on property law, and in one class he delivered a lecture on how ownership rights had evolved over time. Near the end of the hour, sensing that his students’ minds were wandering, he decided to shake things up. What would happen, he asked, if the law were to further evolve to grant rights to, say, trees or even rocks? “This little thought experiment,” he later recalled, created an “uproar.”

Until that moment, Stone hadn’t considered this question. But, having tossed it out, he found himself intrigued. He set about writing a law-review article. In the article, “Should Trees Have Standing?—Toward Legal Rights for Natural Objects,” Stone noted that rights are always socially constructed. In America in the eighteenth and nineteenth centuries, many groups—Blacks, Native Americans, women, children—were denied rights; then, as society, or what counted as society, changed, rights were slowly and painfully (and often incompletely) extended to them.

“Each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable,” Stone wrote. “This is partly because until the rightless thing receives its rights we cannot see it as anything but a thing for the use of ‘us’—those who are holding rights at the time.” He went on, “I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment—indeed to the natural environment as a whole.”

This extension of rights, Stone argued, was needed to address an otherwise insuperable problem. So long as “natural objects” were valued only in terms of their worth to humans—“for the use of ‘us’ ”—they could, quite legally, be destroyed. Stone cited the example of someone polluting a stream. People living downstream could take the polluter to court and perhaps win damages. But the waterway and the species dependent on it would never recoup their losses. In the conflict between the polluter and the downstream residents, he wrote, “the stream itself is lost sight of.”

As it happened, in the autumn of 1971, while Stone was at work on his article, a major environmental case was wending its way through the courts. A couple of years earlier, Disney had decided to build a giant ski resort in a wilderness area south of Yosemite known as Mineral King. (The resort was to be, in Disney’s words, an “American Alpine Wonderland,” with a five-story hotel, twenty-two lifts, and ten restaurants, including one at eleven thousand feet.) To construct the resort, and to bring in visitors, the company needed an access road through Sequoia National Park. When the Interior Department approved the highway, the Sierra Club sued, arguing that it would cause “irreparable harm to the public interest.” A federal judge in San Francisco ruled in the group’s favor and issued a preliminary injunction blocking work on the resort. On an appeal from the Interior Department, the ruling was reversed. The Sierra Club, the appellate court said, lacked standing to sue, since it wouldn’t be directly affected by the project. This time, the Sierra Club appealed.

When Stone learned that the case, Sierra Club v. Morton, was headed to the U.S. Supreme Court, he decided, with the help of the editors of the Southern California Law Review, to rush his article into print. A friend of his, who was a law clerk for the Supreme Court Justice William O. Douglas, seems to have relayed an early draft to Douglas, an ardent environmentalist. (Whether this back-channel communication was kosher is debatable.)

In April, 1972, the Supreme Court upheld the appellate court’s decision against the Sierra Club, by a vote of four to three. (Two seats on the Court were vacant.) Douglas, drawing heavily on Stone’s article, penned a dissenting opinion. “A ship has a legal personality, a fiction found useful for maritime purposes,” he wrote. A corporation, too, “is a ‘person’ for purposes of the adjudicatory processes. . . . So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”

Douglas’s opinion has been described as “one of the most famous and passionate dissents in the Supreme Court’s history,” and it turned what probably otherwise would have been a little-noticed law-review article into a media event. “Should Trees Have Standing?” was reprinted in the Congressional Record and published in book form. The Berkeley Monthly declared it a sign of better times to come. There was something “amiably zany,” as Stone would later put it, about a law professor who wanted to bestow rights on shrubs.

Even Stone’s critics had fun with his idea. “Why wouldn’t Mineral King want to host a ski resort, after doing nothing for a billion years?” Mark Sagoff, a philosophy professor, quipped in the Yale Law Journal. Writing in the American Bar Association Journal, an attorney named John Naff lyricized:

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