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Can an Edible Plant Be a Plaintiff?

By Richard Dahl on August 23, 2021 2:37 PM

We've written here before about "environmental personhood," the idea that the best way to protect bodies of water and other natural resources is to give them the same rights as humans.

These efforts typically have sought to give a designated human group the power to act in the best interests of the natural resource much like a parent or legal guardian.

While it might sound intriguing, the argument has not gained much legal traction in the U.S. That doesn't mean, however, that the theory isn't continuing to evolve.

It's evolved so much, in fact, that the latest development in this area of law might have you doing a doubletake.

A Minnesota Tribe and a Non-Human Plaintiff

What we're talking about is this:

On Aug. 5, plaintiffs opposed to the expansion of an oil pipeline across northern Minnesota filed a complaint in a tribal court seeking to stop the state from allowing the pipeline operator from using 5 billion gallons of water for its construction.

No doubt this is a serious legal matter. But here's our point: The lead plaintiff in this case is manoomin, which is the Ojibwe word for wild rice. We're not talking about a plaintiff who owns wild rice or somehow represents wild rice. We're talking about the edible plant itself.

In case you've never had Minnesota wild rice, you have been missing out on one of nature's great delicacies. It's been harvested by the Ojibwe and other tribes for hundreds of years, and many consumers who have tasted the fruits of the tribal labor contend that no rice on the planet can match it for its nutty deliciousness.

But does that mean it has the stuff to be a plaintiff?

The White Earth band of Ojibwe do. They list themselves second on the plaintiffs list and they argue that the tribe has a "sacred covenant" with manoomin, which has "inherent rights to exist, flourish, regenerate, and evolve." And, they contend, if large volumes of water are to be used by the pipeline construction, it threatens manoomin's life.

Buttressing their claim that wild rice deserves personhood, the tribal plaintiffs point to a law that the tribe passed in 2018. That law states that wild rice has rights just like humans do. In the plant's case, that means the right to "clean water and freshwater habitat," "a natural environment free from industrial pollution," and more.

Legal experts say this is the first "rights of nature" case in tribal court. But it is not the first in history. That distinction belongs to the Ninth Judicial Circuit Court in Florida, which is hearing a case filed by environmentalists in April to stop a developer from filling in 115 acres of wetlands. The primary plaintiffs in that case are five waterways.

Of course, there is a human involved in bringing that case. That would be Charles O'Neal, president of an environmental organization called Speak Up Wakiva, and he is basing the lawsuit on a ballot measure passed by county residents last November to establish a "right of nature" in the central Florida county.

It's important to note that while environmental personhood efforts have not had much success in the U.S., they have gained traction elsewhere. Courts and governments in several countries have recognized various rights of nature since 2008, when Ecuador became the first.

In the U.S., several cities have tried. One of them, Toledo, passed a "Lake Erie Bill of Rights" to protect the lake from environmental threats. But a federal judge ruled the effort invalid in 2020 because it was "unconstitutionally vague" and exceeded municipal powers.

Critics Respond

The recent efforts featuring edible plants and riverways as plaintiffs have drawn criticism, of course. The Florida Chamber of Commerce, for instance, derided the Orange County action for reliance on a "fringe legal philosophy."

But in examining the "right of nature" legal attempts, Pew Charitable Trusts points out that skepticism is widely shared.

"(I)t's still uncertain if any of the forms the movement has taken – protecting watersheds, habitats, and species – will prove most effective as a legal tactic," Pew reported. "And critics in business and government contend that overly broad declarations could paralyze important development and infrastructure if entire habitats are rendered untouchable."

Meanwhile in northern Minnesota, a lawyer for the White Earth Ojibwe band told Minnesota Public Radio that the state will likely not submit to a tribal court ruling, so the tribe is planning to take the case to federal court.

Its chances of success may not be great, but Thomas Linzey, senior legal counsel for the Center for Democratic and Environmental Rights in Spokane, Washington, told MPR that the primary goal of the movement is mostly to change the way people think about the natural world and environmental law.

He has a point. If a stalk of rice has standing to file a lawsuit, it does change the way you think about those things.

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