Adapted from a speech to the Prairie Rivers Network, 11/06/09, Champaign, IL.
"Ask Me" by William Stafford
Some time when the river is ice ask me
mistakes I have made. Ask me whether
what I have done is my life. Others
have come in their slow way into
my thought, and some have tried to help
or to hurt: ask me what difference
their strongest love or hate has made.
I will listen to what you say.
You and I can turn and look
at the silent river and wait. We know
the current is there, hidden; and there
are comings and goings from miles away
that hold the stillness exactly before us.
What the river says, that is what I say.
I have often thought that I could tell my entire autobiography through rivers, beginning with the essential fact that my grandparents lived on the Illinois River. My dad grew up there and decided to be a surgeon because of a decoy carver named Charlie Perdew who lived in a swampy swale of the Illinois and who taught him to carve very small ducks.
Later I became an archaeologist on a large federal project, the Dolores Dam Project, in southwest Colorado. I began reading Edward Abbey and all the great writers of the desert southwest. Abbey wrote a wonderful book called Down the River that I read as I ran some of the rivers he describes – the Green and the San Juan to name two of my favorites. I even got my current job because of an article I wrote on the Wild and Scenic River Act. What the rivers say, that is what I tried to say.
We are all downstream
We can also tell the biography of the environmental movement through rivers.
Where else would we begin but with the Hetch Hetchy river? At the turn of the last century, San Francisco wanted to build a dam and reservoir but it required destruction of the Hetch Hetchy valley in Yosemite. From 1901 to 1913 John Muir and his allies rallied the nation in opposition. The New York Times even wrote an editorial supporting conservation of the valley. Nevertheless, Congress passed legislation called the Raker bill that allowed San Francisco to build the dam.
John Muir wrote, "[t]his damn Raker bill has upset everyone. Well, think on it. Three or four ambitious politicians and shifty traders calling themselves the City of San Francisco and bargaining like Yankee horse traders for half of the Yosemite National Park, working in darkness like moles in a low-lying meadow. The Senate passed the Raker bill two weeks ago at midnight session . . . and to gain the Almighty Dollar, they will turn that incredibly beautiful valley into a watertank. Dam up the Hetch Hetchy! We might as well dam up the people's cathedrals and churches. Use them as watertanks, for no holier temple has ever been consecrated by the heart of man."
The river spoke to Muir of what was sacred, what held the presence of the divine.
We can trace environmental organizing and grassroots efforts to this one story. We lost Hetch Hetchy but we strengthened our resolve never again to lose one inch of a National Park. We did so not only because it was really great land but because we understood that these places were cathedrals. They were the genius loci of the sacred.
Aldo Leopold picked up some of these themes in his essay, "The Round River," in which he used that Wisconsin river as a metaphor for ecology and the interconnectedness of rock and water, flesh and soil. "We who are the heirs and assigns of Paul Bunyan have not found out either what we are doing to the river or what the river is doing to us," he wrote. What the river said to Leopold is that what we do to the river we do to ourselves.
Leopold's injunction in a later essay to think like a mountain could equally be applied to thinking like a river.
It is no accident that Rachel Carson's early education in the natural world was obtained on the banks of the Allegheny River in Pennsylvania where she was able to observe the life around her. In chapter nine of Silent Spring, "Rivers of Death," Carson described the consequence of spraying the forests surrounding the Miramichi River in New Brunswick with DDT. Spruce budworm, a native insect, has about a 35-year pattern of rise and decline. In 1954 the budworm was threatening the paper and pulp industry. Aerial spraying killed most of the insect life on the river, which meant that by August the entire salmon spawn was dead. She said that incidents like this "raise a question that is not only scientific but moral. The question is whether any civilization can wage relentless war on life without destroying itself and without losing the right to be called civilized."
What Carson learned from the river is that we are all downstream. This is what the rivers said to our ancestors in the environmental movement: We are all connected. What we do to the river we do to ourselves. We are all downstream.
Public Trust—a gift of rivers
These messages matter because John Muir and the Psalmist are right, the rivers are a holy gift. We have the sacred duty to share the gifts that rivers provide precisely because we are all connected and we are all downstream. We have to share with other humans, with the rest of nature, and with future generations whether we like it or not.
None of the other landforms or elements require sharing. Mountains, lakes, and prairies can be privately owned. It would be funny to think of sharing the wind. But rivers have been used from time immemorial as political boundaries, as corridors of transportation. They pass through many political jurisdictions. We are forced to share by the very nature of rivers. We know that when we put nitrogen on Illinois fields it washes down to the Gulf of Mexico and creates a dead zone. We know that when Chicago reversed a river and put its sewage in it, someone else was going to be drinking it. We also know that the care that people take upstream increases their land values and the land values of people downstream.
So we have a choice. Will we straighten, pollute, dam, and bury every flowing drop of water? Or will we share clean, healthy, beautiful, free-flowing rivers with the rest of nature and future generations?
This ancient wisdom and the necessity of sharing form a little current in our legal system as the public trust doctrine. The Roman emperor Justinian codified the public trust doctrine in about 530 AD with these immortal words:
"By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings which are not, like the sea, subject only to the law of nations."
This idea that running water and the shores of the sea are a common heritage of humanity and must be shared was picked up in 1215 in the Magna Carta as a limit on sovereignty. The King could not exclude commoners from the rivers and other commons that were essential for livelihoods.
But when Europeans colonized North America and created a democracy there was no apparent need to limit the King’s reach by establishing laws that mandated sharing. And since private property was part of what defined the citizenry, the commons were lost in the welter of laws protecting private property. With two exceptions – wildlife and rivers or shorelines. The public trust doctrine has been codified and reinforced in most states and as a matter of federal law. Illinois has played a particularly important role in keeping the public trust doctrine a living, breathing, potent force with two lawsuits that established the shore of Lake Michigan as a trust held for the public.
The public trust doctrine, which is really a gift of the rivers themselves, held open a place in American law for ways that we could share the bounty of the Earth with each other. It can serve now as a springboard for imagining the future of environmental law.
Imagine extending the public trust doctrine into a government job description. Government would be caretaking, increasing, and restoring our shared wealth and public health. Imagine government at every level scaled to the commons under its care. Seeds, water, parks, libraries, bridges, wildlife, air, and especially rivers would all be turned over to future generations in better shape than we got them from our ancestors.
Fulfilling this obligation will require new and visionary laws and policies. I’ve just completed an extensive collaboration on the law of future generations, with the remarkable International Human Rights Clinic at Harvard Law School. We’ve produced two documents describing the kind of law we need to protect future generations: Models for Protecting the Environment for Future Generations, and Model State Constitutional Provision & Model Statute.
Environmental law is almost exclusively a species of free market law. The regulations applying environmental law are cost-benefit analysis and risk assessment. These regulatory tools weigh the environmental or public health benefits against the economy. But rights law, especially the tradition of human rights, stands outside economics.
We do not ask what the value of slavery is to the economy and then regulate slavery by, say, requiring owners to treat slaves a little better. Instead, we say it is wrong and illegal. We do not apply a cost-benefit test to slaves. There are other things like environmental issues that should be moved out of the rules of the free market and into the logic and rules of rights. These rights are not limited to humans, but we have a rich history of human rights law that we can draw on for the rights of nature, the rights of communities, and the rights of future generations.
Our proposal is to create the office of legal guardian for future generations. [click here, second from the bottom] The legal guardian would be responsible for inventorying the commons and preparing plans for their long-term care. In addition, the guardian would review legislation and regulations for their impact on future generations. While the special responsibility for being the ears, the eyes, the voice of future generations would reside with the guardian, every government agency would be charged with care of the commons under its jurisdiction.
What would the Army Corps of Engineers do differently if it saw its central charge as tending the rivers in such a way that they were more healthy and resilient when the next generation inherited them? What if the Corps was the lead agency in carrying out the public trust doctrine with regard to rivers?
And what if the National Guard really was comprised of National Guardians? We have a precedent for that. Some years ago, Governor Schweitzer of Montana wrote to then President George Bush and asked him to send the National Guard home from Iraq because Montana needed them to protect the national forests from fire.
When future generations take a reckoning of our generation, if we pass muster it will be because of the work of those who understood the lessons of the river. They knew that we must share these sacred, life-giving waters, they knew that we are all connected, that we are all downstream.
In November 2008 a River Congress in Des Moines brainstormed a list of river rights, which I’ve adapted here. It’s what a river might say about its own rights and therefore about the rights of children of all species.
As a river…
I have the right to be full of life.
I have the right to use my flood plain.
I have the right to natural change.
I have the right to run free.
I have the right to be respected.
I have the right to be healthy.
I have the right to run free of trash.
I have the right to be recognized.
I have the right to be represented.
I have the right to take my time.
I am sacred.
What the River says, that is what I say.
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