Speaking for the Rivers, Inc. :establishing legal rights for ecosystems and non-human species through the non-profit incorporation of watersheds

Clarkson, Sean D.
Michael Simpson, MS
Department of Environmental Studies
Justice Douglas, in his dissent of the Supreme Court's decision in Sierra Club v. Morton, 405 U.S. 727 (1972), argued that natural areas should have direct standing to defend themselves before the court. Douglas, and Christopher Stone in Should Trees Have Standing?, identified a standing hurdle that prevents direct representation of natural areas and non-human species. This thesis proposes that natural areas can be incorporated based upon watershed delineation models by using existing regulations governing the incorporation of IRC 501( c ) (3) non-profit corporations. These incorporated watersheds would then have persona ficta standing before the court. This status should effectively clear way the standing hurdle. The incorporated watersheds should then have ability to defend ecological interests as business interests using the valuation regime established by Constanza, et al., and the economic zone of interest test established in Bennet v. Spear, 520 U.S. 154 (1997). Further, these incorporated watershes could represent non-human species as members of the corporation using a variety of methods, including standing granted to threatened and endangered species under the ESA and the heightened standard for injury in fact set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Watersheds and non-human species should be able to use the accepted avenue of incorporation and the vehicle of persona ficta to represent vital, ecological interests, rendering moot the standing hurdle identified by Douglas and Stone.

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